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7 


LIBRAEY 

1 

OF  THE 

Theological   Seminary, 

NTCETON,    N.  J. 

Shelf, 

Div+s+c       «^5^— -v— ' 

Booh, 

\j.Z  .    ...~ 

• 


\ 


\ 


THE 

PRINCIPLES 

OF 

NATURAL  AND  POLITIC 


LAW. 


IN  TWO  VOLUMES.    • 

— ..<>...^^»4^)^04.^>....<>— 
BY  J.  J.  BURLAMAQUI, 

COVNSBL10&  OF  STATE,  AND  LATE  PROFESSOR  OF  NATURAL  AND  CIVIL  LAW  AT 
GENEVA. 

— .-<>....<^^.©^Q4f^»-«>.. 

VOL.  II. 

TRANSLATED  INTO  ENGLISH  BY  MR.  NUGENT. 
FIFTH  EDITION,  CORRECTED, 


CAMBRIDGE, 

PRINTED  AT  THE  UNIVERSITY  PRESS,  BT  W.  HILLIARD,  AND 

SOLD  AT  BIS  BOOKSTORE,  AND  Br  THE  BOOK' 

SELLERS  IN  BOSTON. 


1807. 


Digitized  by  the  Internet  Archive 

in  2011  with  funding  from 

Princeton  Theological  Seminary  Library 


http://www.archive.org/details/principlesofna02burl 


CONTENTS, 


PART  I. 

Which  treats  of  the  original  and  nature  of  civil  society,  or  sove- 
reignty in  general,  of  its  peculiar  character,  modifications,  and 
essential  parts. 

CHAP.  I. 

CPage. 
ONTAINING    some  general  and  preliminary  reflec- 
tions, which  serve  as  an  introduction  to  this  and  the  fol- 
lowing parts.  9 

CHAP.  II. 
Of  the  original  of  civil   societies  in  fact-  13 

CHaP.  III. 

Of  the  right  of  conveniences  with  regard  to  the  institution  of 
civil  society,  and  the  necessity  of  a  supreme  authority ;  of 
civil  liberty,  that  it  is  far  preferable  to  natural  liberty,  and 
that  the  civil  state  is  of  all  human  states  the  most  perfect, 
the  most  reasonable,  and  consequently  the  natural  state  of 
man.  16 

CHAP.  IV. 

Of  the  essential  constitution  of  states,  and  of  the  manner,  in 
which  they  are  formed.  23 

CHAP.  V. 

Of  the  sovereign,  sovereignty,  and  the  subjects.  29 

CHAP.  VI. 

Of  the  immediate  source  and  foundation  of  sovereignty.        .33 


iv  CONTENTS. 

CHAP.  VII. 

Page. 

Of  the  essential  characters  of  sovereignty,  its  modifications, 

extent,  and  limits.  38 

1.  Of  the  characters  of  sovereignty.  ibid 

2.  Of  absolute  sovereignty.  41 

3.  Of  limited  sovereignty.  44 

4.  Of  fundamental  laws.  46 

5.  Of  patrimonial  and  usufructuary  kingdoms.  50 

CHAP.  VIII. 

Of  the  parts  of  sovereignty,  or  of  the  different  essential  rights, 
which  it  includes.  51 


PART  II. 

In  •which  are  explained  the  different  forms  of government ,  the  ways 
of  acquiring  or  losing  sovereignty  and  the  reciprocal  duties  of 
sovereigns  and  subjects. 

CHAP.  I. 

SDf  the  the  various  forms  of  government.  55 

CHAP.  II. 
An  essay  on  this  question,  Which  is  the  best  form  of  govern- 
ment ?  63 

CHAP.  III. 

Of  the  different  ways  of  acquiring  sovereignty.  73 

1.  Of  conquest.  74 

2.  Of  the  election  of  sovereigns.  7^ 

3.  Of  the  succession  to  the  crown.  77 

CHAP.  IV. 

Of  the  different  ways  of  losing  sovereignty.  83 

CHAP.  V. 
©f  the  duties  of  subjects  in  general,  86 


CONTENTS.  v 

Pagt, 

CHAP.  VI. 

Of  the  inviolable  rights  of  sovereignty,  of  the  deposing  of 
sovereigns,  of  the  abuse  of  sovereignty,  and  of  tyranny.    99 

CHAP.  VII. 

Of  the  duty  of  sovereigns.  97 


PART  III. 

A  more  particular  examination  of  the  essential  parts  of  sovereignty 
or  of  the  different  rights  of  the  sovereign,  with  respect  to  the  in- 
ternal administration  of  the  state,  such  as  the  legislative  power, 
the  supreme  power  in  matters  of  religion,  the  right  of  inflicting 
punishment)  and  that  which  the  sovereign  has  over  the  Bona 
Reipublicse,  or  the  goods  contained  in  the  commonwealth. 

CHAP.  I. 

Of  the  legislative  power,  and  the  civil  laws  which  arise 
from  it.  110 

CHAP.  II. 

Of  the  right  of  judging  of  the  doctrines  taught  in  the  state. 
Of  the  care,  which  the  sovereign  ought  to  take  to  form 
the  manners  of  his  subjects.  120 

CHAP.  III. 

Of  the  power  of  the  sovereign  in  matters  of  religion.  122 

CHAP.  IV. 

Of  the  power  of  the  sovereign  over  the  lives  and  fortunes 
of  his  subjects  in  criminal  cases.  13® 

CHAP.  V. 

Of  the  power  of  sovereigns  over  the  Bona  Reipublica,  or  the 
goods  contained  in  the  commonwealth.  143 


v5  CONTENTS. 


PART  IV, 

In  which  are  considered  the  different  rights  of  sovereignty  with  res- 
pect to  foreign  states  ;  the  right  of  war,  and  every  thing  relating 
to  it ;  public  treaties,  and  the  right  of  ambassadors. 

CHAP.  I. 

Page, 

Of  war  in  general,  and  first  of  the  right  of  the  sovereign,  in 
this  respect,  over  his  subjects.  155 

CHAP.  II. 
Of  the  causes  of  war.  161 

CHAP.  III. 

Of  the  different  kinds  of  war.  173 

CHAP.  IV. 

Of  those  things  which  ought  to  precede  war.  1 84 

CHAP.  V. 

General  rules  to  know  what  is  allowable  in  war.  190 

CHAP.  VI. 

Of  the  rights,  which  war  gives  over  the  persons  of  the  ene- 
my, and  of  their  extent  and  bounds.  194 

CHAP.  VII. 

Of  the  rights  of  war  over  the  goods  of  an  enemy.  201 

CHAP.  VIII. 
Of  the  right  of  sovereignty  acquired  over  the  conquered.       211 
Of  neutrality.  215 

CHAP.  IX. 
Of  public  treaties  in  general.  216 

CHAP.  X. 
Of  compacts  made  with  an  enemy.  224 


CONTENTS,  vis 

Page,, 

CHAP.  XI. 
Of  compacts  with  an  enemy,  which  do  not  put  an  end  to 
the  war.  230 

CHAP.  XII. 

Of  compacts  made,  during  the  war,  by  subordinate  powers, 
as  generals  of  armies,  or  other  commanders.  236 

CHAP.  XIII. 
Of  compacts  made  with  an  enemy  by  private  persons-  239 

CHAP.  XIV. 
Of  public  compacts  which  put  an  end  to  war.  241 

CHAP.  XV. 

Of  the  right  of  ambassadors.  247 


THE 

PRINCIPLES 

OF 

POLITIC  LAW; 

BEING  A  SEQUEL  TO  THE  PRINCIPLES  OF  THE  LAW 
OF  NATURE. 

PART  I. 

Which  treats  of  the  origin  and  nature  of  civil  society ,  »f  sovereignty 
in  general,  of  its  peculiar  characteristic)  limitations,  and  essen- 
tial parts. 

CHAP.  I. 

Containing  a  few  general  and  preliminary  refections,  which  serve 
as  an  introduction  to  this  and  the  following  parts. 


iW, 


HATEVER  has  been  hitherto  explained,  con- 
cerning the  rights  and  duties  of  man,  relates  to  the  natural  and 
primitive  society,  established  by  God  himself,  independent  of 
human  institution.  We  must  now  treat  of  civil  society,  or  the 
body  politic,  which  is  deservedly  esteemed  the  completest  of 
societies,  and  to  which  the  name  of  State  has  been  given  by 
way  of  preference- 

II.  For  this  purpose  we  shall  repeat  here  the  substance  of 
some  principles,  established  in  the  preceding  volume,  and  we 
shall  give  a  further  explication  of  others  relative  to  this  subject. 

t.  Human  society  is  originally  and  in  itself  a  State  of  equali- 
ty and  independence. 

2.  The  institution  of  sovereignty  destroys  this  independence. 

3.  This  institution  does  not  subvert  natural  society. 

4.  On  the  contrary  it  contributes  to  strengthen  and  cement  it. 

B 


to  THE  PRINCIPLES  OF 

III.  To  form  therefore  a  just  idea  of  civil  society  we  must  call 
k  natural  society  itself,  modified  in  such  a  manner,  that  there  is 
a  sovereign  presiding  over  it,  on  whose  will  whatever  relates  to 
the  welfare  of  the  society  ultimately  depends  ;  to  the  end  that, 
by  these  means  mankind  may  attain,  with  greater  certainty,  that 
happiness,  to  which  they  all  naturally  aspire. 

IV.  The  institution  of  civil  societies  produces  some  new  re- 
lations amongst  mankind  ;  I  mean  such  as  subsist  between 
those  different  bodies  or  communities,  which  are  called  states 
or  nations,  from  which  the  law  of  nations  and  civil  polity  are 
derived. 

V.  In  fact  so  soon  as  states  are  formed,  they  acquire,  in  some 
measure,  personal  properties  ;  and  consequently  we  may  at- 
tribute the  same  rights  and  obligations  to  them,  as  are  attribut- 
ed to  individuals,  considered  as  members  of  society.  And  in- 
deed it  is  'evident,  that,  if  reason  imposes  certain  duties  on 
individuals  towards  each  other,  it  prescribes  likewise  those  very 
same  rules  of  conduct  to  nations,  (which  are  composed  only 
of  men)  in  the  intercourse,  which  they  .may  have  with  each 
other. 

VI.  We  may  therefore  apply  to  kingdoms  and  nations  the 
several  maxims  of  natural  law,  hitherto  explained  ;  and  the 
same  law,  which  is  called  natural  when  speaking  of  individuals, 
is  distinguished  by  the  name  of  the  law  of  nations,  when  ap- 
plied to  men,  considered  as  members  forming  those  different 
bodies,  known  by  the  name  of  states  or  nations. 

VII.  To  enter  into  this  subject  we  must  observe,  that  the 
natural  state  of  nations,  with  respect  to  each  other,  is  that  of 
society  and  peace.  This  society  is  likewise  a  state  of  equality 
and  independence,  which  establishes  between  them  a  right 
6f  equality,  by  which  they  are  obliged  to  have  the  same  re- 
gard for  each  other.  The  general  principle  therefore  of  the 
law  of  nations  is  nothing  more  than  the  general  law  of  socia- 
bility, which  obliges  nations  to  the  same  duties,  as  are  prescrib- 
ed to  individuals. 

VIII.  Thus  the  law  of  natural  equality,  that  which  prohib- 
its our  injuring  any  person,  and  commands  the  reparation  of 
damage  done,  the  law  likewise  of  beneficence,  of  fidelity  to  our 


POLITIC  LAW.  u 

engagements,  &c.  are  so  many  laws  in  regard  to  nations,  which 
impose  both  on  the  people  and  on  their  respective  soveriegns  the 
same  duties,  as  are  prescribed  to  individuals. 

IX.  It  is  a  point  of  some  importance  to  attend  to  the  nature 
and  origin  of  the  law  of  nations,  such  as  hath  been  here  ex- 
plained ;  for  it  follows  thence,  that  the  law  of  nations  is  of 
equal  authority  with  the  law  of  nature  itself,  of  which  it  con- 
stitutes a  part,  and  that  they  are  equally  sacred  and  venerable, 
since  both  have  the  Deity  for  their  author. 

X.  There  cannot  even  be  any  other  law  of  nations  really  ob- 
ligatory, and  intrinsically  invested  with  the  force  of  a  law. 
For,  since  all  nations  are  in  respect  to  each  other  in  a  state  of 
perfect  equality,  it  is  beyond  contradiction,  that,  if  there  be  any 
common  law  betwixt  them,  it  must  necessarily  have  God,  their 
common  sovereign,  for  its  author. 

XI.  As  to  what  concerns  the  tacit  consent  or  customs  of 
nations,  on  which  some  doctors  establish  a  law  of -nations,  they 
cannot  of  themselves  produce  a  real  obligation.  For  from  this 
only,  that  several  nations  have  behaved  towards  each  other  for 
some  time  after  a  certain  manner,  it  does  not  follow,  that  they 
have  laid  themselves  under  a  necessity  of  acting  constantly  so 
for  the  future,  and  much  less,  that  every  other  nation  is  oblig- 
ed to  conform  to  this  custom. 

XII.  All  that  can  be  said  is,  that,  when  once  a  particular 
usage  or  custom  is  introduced  between  nations,  that  have  a  fre- 
quent intercourse  with  each  other,  these  nations  are,  and  may 
reasonably  be  supposed  to  submit  to  this  usage,  unless  they 
have  in  express  terms  declared,  that  they  will  not  conform  to  it 
any  longer  ;  and  this  is  all  the  effect,  that  can  be  attributed  to 
the  received  usages  between  nations. 

XIII.  This  being  premised,  we  may  distinguish  two  sorts  of 
laws  of  nations,  one  necessary,  which  is  obligatory  of  itself,  and 
no  way  differs  from  the  law  of  nature  ;  the  other  arbitrary  and 
free,  founded  only  on  a  kind  of  tacit  convention,  and  deriving 
all  its  force  from  the  law  of  nature,  which  commands  us  to  be 
faithful  to  our  engagements. 

XIV.  "What  has  been  said  concerning  the  law  of  nations  fur- 
nishes princes  with  several  important  reflections  •,  among  others.. 


is  THE  PRINCIPLES  OF 

that  since  the  law  of  nations  is  in  reality  nothing  else,  but  the 
law  of  nature  itself,  there  is  but  one  and  the  same  rule  of  jus- 
tice for  all  mankind  ;  insomuch  that  those  princes,  who  violate 
them,  are  guilty  of  as  great  a  crime,  as  private  people  ;  espe- 
cially as  their  wicked  actions  are  generally  attended  with  more 
ixni.appy  consequences,  than  those  of  private  people. 

XV.  Another  consequence,  that  may  be  drawn  from  the 
principles  we  have  established,  relating  to  the  law  of  nature  and 
nations,  is  to  form  a  just  idea  of  that  science  so  necessary  to  the 
directors  of  nations,  which  is  called  Policy.  By  policy  therefore 
is  meant  that  knowledge  or  ability,  by  which  a  sovereign  pro- 
vides for  the  preservation,  security,  prosperity,  and  glory  of  the 
nation  he  governs,  without  doing  any  prejudice  to  other  peo- 
ple, but  rather  consulting  their  advantage,  as  much  as  possible. 

XVI.  In  short  that,  which  is  called  prudence,  in  respect  to 
private  persons,  is  distinguished  by  the  name  of  policy,  when 
applied  to  sovereigns ;  and  as  that  mischievous  ability,  by  which 
a  person  seeks  his  own  advantage  to  the  detriment  of  others,  and 
which  is  called  artifice  or  cunning,  is  deserving  of  censure  in  in- 
dividuals, it  is  equally  so  in  those  princes,  whose  policy  aims  at 
procuring  the  advantage  of  their  own  nation,  to  the  prejudice 
of  what  they  owe  to  other  people,  in  virtue  of  the  laws  of  hu- 
manity and  justice. 

XVII.  From  what  has  been  said  of  the  nature  of  civil  socie- 
ty in  general,  it  is  easy  to  comprehend,  that,  among  all  human 
institutions,  there  is  none  more  considerable  than  this ;  and  that, 
as  it  embraces  whatever  is  interesting  to  the  happiness  of  socie- 
ty, it  is  a  very  extensive  subject,  and  consequently  that  it  is  im- 
portant alike  both  to  princes  and  people  to  have  proper  instruc- 
tions upon  this  head. 

XVIII.  That  we  may  reduce  the  several  articles  relative  to 
this  matter  into  some  order,  we  shall  divide  our  work  into  four 
parts. 

The  first  will  treat  of  the  origin^and  nature  of  civil  societies, 
of  the  manner,  in  which  states  are  formed,  of  sovereignty  in  gen- 
eral, its  proper  characteristics,  its  limitations  and  essential 
parts. 

In  the  second  we  shall  explain  the  different  forms  of  govern- 


POLITIC  LAW.  13 

ment,  the  various  ways  of  acquiring  or  losing  sovereignty,  and 
the  reciprocal  duties  of  sovereigns  and  subjects. 

The  third  will  contain  a  more  particular  inquiry  into  those 
essential  parts  of  sovereignty,  which  are  relative  to  the  internal 
administration  of  the  state,  such  as  the  legislative  power,  the 
supreme  power  in  respect  to  religion,  the  right  of  inflicting  pun- 
ishments, that,  which  the  sovereign  has  over  the  estates  and  ef- 
fects, contained  in  his  dominions,  &c. 

In  the  fourth  in  fine  we  shall  explain  the  rights  of  sovereigns 
with  regard  to  foreigners,  where  we  shall  treat  of  the  right  of 
war,  and  of  whatever  is  relative  to  that  subject,  of  alliances,  and 
other  public  treaties,  and  likewise  of  the  rights  of  ambassadors. 


CHAP.  II. 

Of  the  real  origin  of  civil  societies, 

I.  V>  IVIL  society  is  nothing  more,  than  the  union  of  a 
multitude  of  people,  who  agree  to  live  in  subjection  to  a  sove- 
reign, in  order  to  find,  through  his  protection  and  care,  the  hap- 
piness, to  which  they  naturally  aspire. 

II.  Whenever  the  question  concerning  the  origin  of  civil  so- 
ciety is  started,  it  may  be  considered  in  two  different  ways  ;  for 
-either  I  am  asked  my  opinion  concerning  the  origin  of  govern- 
ments in  reality  and  in  fact ;  or  else  in  regard  to  the  right  of 
congruity  and  fitness  ;  that  is,  what  are  the  reasons,  which 
should  induce  mankind  to  renounce  their  natural  liberty,  and  to 
prefer  a  civil  state  to  that  of  nature  ?  Let  us  see  first  what  can 
be  said  in  regard  to  the  fact. 

III.  As  the  establishment  of  society  and  civil  government  is 
almost  coeval  with  the  world,  and  there  are  but  very  few  records 
extant  of  those  first  ages  ;  nothing  can  be  advanced  with  cer- 
tainty concerning  the  real  origin  of  civil  societies.  All,  that 
political  writers  say  upon  this  subject,  is  reduced  to  conjectures, 
that  have  more  or  less  probability. 

IV.  Some  attribute  the  oi'igin  of  civil  societies  to  paternal 
authority.  These  observe,  that  all  the  ancient  traditions  in- 
form us,  that  the  first  men  lived  a  long  time  ;  by  this  longevity9 


14  THE  PRINCIPLES  OF 

joined  to  the  multiplicity  of  wives,  which  was  then  permitted, 
a  great  number  of  families  saw  themselves  united  under  the 
authority  of  one  grandfather ;  and  as  it  is  difficult  for  a  socie- 
ty, any  thing  numerous,  to  maintain  itself  without  a  supreme 
authority,  it  is  natural  to  imagine,  that  their  children,  accus- 
tomed from  their  infancy  to  respect  and  obey  their  fathers, 
voluntarily  resigned  the  supreme  command  into  their  hands,  so 
soon  as  they  arrived  to  a  full  maturity  of  reason. 

V.  Others  suppose,  that  the  fear  and  diffidence,  which  man- 
kind had  of  one  another,  was  their  inducement  to  unite  togeth- 
er under  a  chief,  in  order  to  shelter  themselves  from  those 
mischiefs,  which  they  apprehended.  From  the  iniquity  of  the 
first  men,  say  they,  proceed  war,  as  also  the  necessity,  to  which 
they  were  reduced,  of  submitting  to  masters,  by  whom  their 
rights  and  privileges  might  be  determined. 

VI.  Some  there  are  in  fine,  who  pretend,  that  the  first  be-!- 
ginnings  of  civil  societies  are  to  be  attributed  to  ambition,  sup- 
ported by  force  or  abilities.  The  most  dexterous,  the  strongest, 
and  the  most  ambitious  reduced  at  first  the  simplest  and  weak- 
est into  subjection  ;  those  growing  states  were  afterwards  in- 
sensibly strengthened  by  conquests,  and  by  the  concurrence  of 
$uch,  as  became  voluntary  members  of  those  societies. 

VII.  Such  are  the  principal  conjectures  of  political  writers 
in  regard  to  the  origin  of  societies  j  to  which  let  us  add  a  few 
reflections. 

The  first  is,  that,  in  the  institution  of  societies,  mankind  in 
all  probability  thought  rather  of  redressing  the  evils,  which 
they  had  experienced,  than  of  procuring  the  several  advan- 
tages resulting  from  laws,  from  commerce,  from  the  arts  and 
sciences,  and  from  all  those  other  improvements  so  frequently 
mentioned  in  history. 

2.  The  natural  disposition  of  mankind,  and  their  general 
manner  of  acting,  do  not  by  any  means  permit  us  to  refer  th.3 
institution  of  all  governments  to  a  general  and  uniform  princi- 
ple. More  natural  it  is  to  think,  that  different  circumstances 
gave  rise  to  different  states. 

3.  We  behold  without  doubt  the  first  image  of  government  in 
democratic  society,  or  in  families  5  but  there   is  all  the  proba- 


POLITIC  LAW.  15 

bility  in  the  world,  that  it  was  ambition,  supported  by  force  or 
abilities,  which  first  subjected  the  several  fathers  of  families  un- 
der the  dominion  of  a  chief.  This  appears  very  agreeable  to 
the  natural  disposition  of  mankind,  and  seems  further  support- 
ed by  the  manner,  in  which  the  scripture  speaks  of  Nimrod,* 
the  first  king  mentioned  in  history. 

4.  When  such  a  body  politic  was  once  framed,  several  oth- 
ers joined  themselves  to  it  afterwards  through  different  motives ; 
and  other  fathers  of  families,  being  afraid  of  insults  or  oppres- 
sion from  those  growing  states,  determined  to  form  themselves 
into  the  like  societies,  and  to  choose  to  themselves  a  chief. 

5.  Be  this  as  it  may,  we  must  not  imagine,  that  those  first 
states  were  such,  as  exist  in  our  days.  Human  institutions  are 
ever  weak  and  imperfect  in  their  beginnings,  there  is  nothing 
but  time  and  experience,  that  can  gradually  bring  them  to  per- 
fection. 

The  first  states  were  in  all  probability  very  small.  Kings  in 
those  days  were  only  a  kind  of  chieftains,  or  particular  magis- 
trates, appointed  for  deciding  disputes,  or  for  the  command  of 
armies.  Hence  we  find  by  the  most  ancient  histories,  that 
there  were  sometimes  several  kings  in  one  and  the  same  nation. 

VIII.  But  to  conclude,  whatever  can  be  said  in  regard  to 
the  original  of  the  first  governments  consists,  according  to 
what  we  have  already  observed,  in  mere  conjectures,  that  have 
only  more  or  less  probability.  Besides  this  is  a  question  rath- 
er curious,  than  useful  or  necessary  j  the  point  of  importance, 
and  that  particularly  interesting  to  mankind,  is  to  know  whether 
the  establishment  of  government  and  of  supreme  authority,  was 
really  necessary,  and  whether  mankind  derive  from  it  any  con- 
siderable advantages.  This  is  what  we  call  the  right  of  con- 
gruity  or  fitness,  and  what  we  are  going  now  to  examine. 

*  See  Genesis,  c.  s.  ver.  8,  and  seq. 


1 6  THE  PRINCIPLES  OF 

CHAP.   III. 

Of  the  right  of  congruity  or  fitness  -with  regard  to  the  institution 
of  civil  society y  and  the  necessity  of  a  supreme  authority  }  of  civ- 
il liberty  ;  that  it  is  far  preferable  to  natural  liberty,  and  that 
the  state  is  of  all  human  conditions  the  most  perfect \  the  most 
reasonable,  and  consequently  the  natural  state  of  man. 

I.  V  V  E  are  here  to  inquire,  whether  the  establishment 
of  civil  society,  and  of  a  supreme  authority,  was  absolutely  nec- 
essary to  mankind,  or  whether  they  could  not  live  happy  with- 
out it  ?  And  whether  sovereignty,  whose  original  is  owing  per- 
haps to  usurpation,  ambition,  and  violence,  does  not  include  an 
attempt  against  the  natural  equality  and  independency  of  man  ? 
These  are  without  doubt  questions  of  importance,  and  which 
merit  the  utmost  attention. 

II.  I  grant,  at  first  setting  out,  that  the  primitive  and  orig- 
inal society,  which  nature  has  established  amongst  mankind,  is  a 
state  of  equality  and  independence  ;  it  is  likewise  true,  that  the 
law  of  nature  is  that,  to  which  all  men  are  obliged  to  conform 
their  actions  ;  and  in  fine  it  is  certain,  that  this  law  is  in  itself 
most  perfect,  and  the  best  adapted  for  the  preservation  and  hap- 
piness of  mankind. 

III.  It  must  likewise  be  granted,  that  if  mankind,  during 
the  time  they  lived  in  natural  society,  had  exactly  conformed  to 
nature's  laws,  nothing  would  have  been  wanting  to  complete 
their  happiness,  nor  would  there  have  been  any  occasion  to 
establish  a  supreme  authority  upon  earth.  They  would  have 
lived  in  a  mutual  intercourse  of  love  and  beneficence,  in  a  sim- 
plicity without  state  or  pomp,  in  an  equality  without  jealousy, 
strangers  to  all  superiority,  but  that  of  virtue,  and  to  every  oth- 
er ambition,  than  that  of  being  disinterested  and  generous. 

IV.  But  mankind  were  not  long  directed  by  so  perfect  a 
rule  ;  the  vivacity  of  their  passions  soon  weakened  the  force 
of  nature's  law,  which  ceased  now  to  be  a  bridle  sufficient  for 
them,  so  that  they  could  no  longer  be  left  to  themselves  thus 
weakened  and  blinded  by  their  passions.  Let  us  explain  this  a 
little  more  particularly. 


POLITIC  LAW.  17 

V.  Laws  are  incapable  of  contributing  to  the  happiness  of 
society,  unless  they  be  sufficiently  known.  The  laws  of  nature 
cannot  be  known  otherwise  to  man,  than  as  he  makes  a  right 
use  of  his  reason  ;  but  as  the  greatest  part  of  mankind,  abandon- 
ed to  themselves,  listen  rather  to  the  prejudices  of  passion  than 
to  reason  and  truth,  it  thence  follows,  that,  in  the  state  of  natural 
society,  the  laws  of  nature  were  known  but  very  imperfectly,  and 
consequently,  that,  in  this  condition  of  things,  man  could  not 
lead  a  happy  life. 

VI.  Besides,  the  state  of  nature  wanted  another  thing,  ne- 
cessary for  the  happiness  and  tranquillity  of  society,  I  mean  a 
common  judge,  acknowledged  as  such,  whose  business  it  is  to 
decide  the  differences,  that  every  day  arise  betwixt  individuals. 

VII.  In  this  state,  as  every  one  would  be  supreme  arbiter  of 
his  own  actions,  and  would  have  a  right  of  being  judge  himself 
both  of  the  laws  of  nature  and  of  the  manner,  in  which  he 
ought  to  apply  them,  this  independence  and  excessive  liberty 
could  not  but  be  productive  of  disorder  and  confusion,  especial- 
ly in  cases,  where  there  happened  to  be  any  clashing  of  inter- 
ests or  passions. 

VIII.  In  fine,  as  in  the  state  of  nature  no  one  had  a  power 
of  enforcing  the  execution  of  the  laws,  nor  an  authority  to  pun- 
ish the  violation  of  them,  this  was  a  third  inconveniency  of  the 
state  of  primitive  society,  by  which  the  efficacy  of  naturul  laws 
was  almost  entirely  destroyed.  For,  as  men  are  framed,  the 
laws  derive  their  greatest  force  from  the  coercive  power,  which 
by  exemplary  punishments,  intimidates  the  wicked,  and  balan- 
ces the  superior  force  of  pleasure  and  passion. 

IX.  Such  were  the  inconveniences,  that  attended  the  state  of 
nature.  By  the  excessive  liberty  and  independence,  which  man- 
kind enjoyed,  they  were  hurried  into  perpetual  troubles ;  for 
which  reason  they  were  under  an  absolute  necessity  of  quitting 
this  state  of  independence,  and  of  seeking  a  remedy  against  the 
evils,  of  which  it  was  productive  ;  and  this  remedy  they  found 
in  the  establishment  of  civil  society  and  a  sovereign  authority. 

X.  But  this  could  not  be  obtained  without  effecting  two 
things  equally  necessary  j  the  first  was  to  unite  together  by 
means  of  a  more  particular  society  ;    the  second,  to  form  this 

C 


1$  THE  PRINCIPLES  OF 

society  under  the  dependance  of  a  person,  invested  with  an  un- 
controlable  power,  to  the  end,  that  he  might  maintain  order  and 
peace. 

XL  By  these  means  they  remidied  the  inconveniences  above- 
mentioned.  The  sovereign,  by  promulgating  his  laws,  acquaints 
his  subjects  with  the  rules,  which  they  ought  to  follow.  We 
then  cease  to  be  judges  in  our  own  cause,  our  whims  and  pas- 
sions are  checked,  and  we  are  obliged  to  contain  ourselves  with- 
in the  limits  of  that  regard  and  respect,  which  we  owe  to  each 
other. 

XII.  This  might  be  sufficient  to  prove  the  necessity  of  gov- 
ernment, and  of  a  supreme  authority  in  society,  and  to  establish 
the  right  of  congruity  or  fitness  in  this  respect  ;  but,  as  it  is  a 
question  of  the  utmost  importance ;  as  mankind  have  a  partic- 
ular interest  in  being  well  acquainted  with  their  state ;  as  they 
have  a  natural  passion  for  independence,  and  generally  frame 
false  notions  of  liberty  •,  it  will  not  be  improper  to  continue  our 
reflections  on  this  subject. 

XIII.  Let  us  therefore  examine  into  natural  and  civil  liber- 
ty i  let  us  afterwards  endeavour  to  show,  that  civil  liberty  is 
far  preferable  to  that  of  nature,  and  consequently,  that  the 
state,  which  it  produces,  is  of  all  human  conditions  the  most 
perfect,  and,  to  speak  with  exactness,  the  true  natural  state  of 
man. 

XIV.  The  reflections  we  have  to  make  upon  this  subject  are 
of  the  last  importance,  affording  useful  lessons  both  to  princes 
and  subjects.  The  greatest  part  of  mankind  are  strangers  to 
the  advantages  of  civil  society,  or  at  least  they  live  in  such 
a  manner,  as  to  give  no  attention  to  the  beauty  or  excellence 
of  this  salutary  institution.  On  the  other  hand,  princes  often 
lose  sight  of  the  end,  for  which  they  were  appointed,  and  in- 
stead of  thinking  that  the  supreme  authority  was  established  for 
no  other  purpose,  than  for  the  maintenance  and  security  of  the 
liberty  of  mankind,  that  is,  to  make  them  enjoy  a  solid  happi- 
ness, they  frequently  direct  it  to  a  different  end,  and  to  their  own 
private  advantage.  Nothing  therefore  is  more  necessary,  than 
to  remove  the  prejudices  both  of  sovereigns  and  subjects  in  rc~ 
£ard  to  this  article. 


POLITIC  LAW.  19 

XV.  Natural  liberty  is  the  right,  which  nature  gives  to  all 
mankind,  of  disposing  of  their  persons  and  property,  after  the 
manner  they  judge  most  convenient  to  their  happiness,  on  con- 
dition of  their  acting  within  the  limits  of  the  law  of  nature,  and 
of  their  not  abusing  it  to  the  prejudice  of  other  men.  To  this 
right  of  liberty  there  is  a  reciprocal  obligation  corresponding,  by 
which  the  law  of  nature  binds  all  mankind  to  respect  the  liberty 
of  other  men,  and  not  to  disturb  them  in  the  use  they  make  of 
it,  so  long  as  they  do  not  abuse  it. 

XVI.  The  laws  of  nature  are  therefore  the  rule  and  meas- 
ure of  liberty  ;  and,  in  the  primitive  and  natural  state,  mankind 
have  no  liberty  but  what  the  laws  of  nature  give  them ;  for 
which  reason  it  is  proper  tG  observe  here,  that  the  state  of  nat- 
ural liberty  is  not  that  of  an  intire  independence.  In  this  state 
men  are  indeed  independent  with  regard  to  one  another,  but 
they  are  all  in  a  state  of  dependance  on  God  and  his  laws.  In- 
dependence, generally  speaking,  is  a  state  unsuitable  to  man,  be- 
cause by  his  very  nature  he  holds  it  of  a  superior. 

XVII.  Liberty  and  independence  of  any  superior  are  two  very 
disiinct  things,  which  must  not  be  confounded.  The  first  be- 
longs essentially  to  man,  the  other  cannot  suit  him.  And  so 
far  is  it  from  being  true,  that  human  liberty  is  of  itself  inconsis^ 
tent  with  dependance  on  a  sovereign  and  submission  to  his  laws, 
that,  on  the  contrary,  it  is  this  power  of  the  sovereign,  and  the 
protection,  which  men  derive  from  it,  that  forms  the  greatest  se- 
curity of  their  liberty. 

XVIII.  This  will  be  still  better  understood  by  recollecting 
what  we  have  already  settled,  when  speaking  of  natural  liberty. 
We  have  shown  that  the  restrictions,  which  the  law  of  nature 
makes  to  the  liberty  of  man,  far  from  diminishing  or  subverting 
it,  on  the  contrary  constitutes  its  perfection  and  security.  The 
end  of  natural  laws  is  not  so  much  to  restrain  the  liberty  of  man, 
as  to  make  him  act  agreeably  to  his  real  interests ;  and  more- 
over, as  these  very  laws  are  a  check  to  human  liberty,  in  whatr- 
ever  may  be  of  pernicious  consequence  to  others,  it  secures,  by 
ihese  means,  to  all  mankind  the  highest  and  the  most  advanta- 
geous degree  of  liberty,  they  can  reasonably  desire. 

XIX.  We  may  therefore  conclude,  that  in  the  state  of  nature 


±o  THE  PRINCIPLES  OF 

man  could  not  enjoy  ail  the  advantages  ofliberty,  but  inasmuch 
as  this  liberty  was  made  subject  to  reason,  and  the  laws  of  na- 
ture were  the  rule  and  measure  of  the  exercise  of  it.  But  if  it 
be  true  in  fact,  that  the  state  of  nature  was  attended  with  the 
several  inconveniences  already  mentioned,  inconveniences,  which 
almost  effaced  the  impression  and  force  of  natural  laws,  it  is  a 
plain  consequence,  that  natural  liberty  must  have  greatly  suffer- 
ed thereby,  and  that  by  not  being  restrained  within  the  limits  of 
the  law  of  nature,  it  could  not  but  degenerate  into  licentious- 
ness, and  reduce  mankind  to  the  most  frightful  and  the  most 
melancholy  of  situations. 

XX.  As  they  were  perpetually  divided  by  contentions,  the 
strongest  oppressed  the  weakest ;  they  possessed  nothing  with 
tranquillity;  they  enjoyed  no  repose  •,  and  what  we  ought  par- 
ticularly to  observe  is,  that  all  these  evils  were  owing  chiefly  to 
that  very  independence,  which  mankind  were  possessed  of  in  re- 
gard to  each  other,  and  which  deprived  them  of  all  security  of 
the  exercise  of  their  liberty ;  insomuch  that,  by  being  too  free, 
they  enjoyed  no  freedom  at  all ;  for  freedom  there  can  be  none, 
when  it  is  not  subject  to  the  direction  of  laws. 

XXI.  If  it  be  therefore  true,  that  the  civil  state  gives  a  new 
force  to  the  laws  of  nature,  if  it  be  true  also,  that  the  establish- 
ment of  sovereignity  secures,  in  a  more  effectual  maimer,  the 
observance  of  those  laws,  we  must  conclude,  that  the  liberty, 
which  man  enjoys  in  this  state,  is  far  more  perfect,  more  secure, 
and  better  adapted  to  procure  his  happiness,  than  that,  which 
he  wa6  possessed  of  in  the  state  of  nature. 

XXII.  True  it  is,  that  the  institution  of  government  and  sove- 
reignty is  a  considerable  limitation  to  natural  liberty,  for  man 
must  renounce  that  power  of  disposing  of  his  own  person  and 
actions,  in  a  word,  his  independence.  But  what  better  use 
could  mankind  make  of  their  liberty,  than  to  renounce  every 
dangerous  tendency  it  had  in  regard  to  themselves,  and  to  pre- 
serve no  more  of  it,  than  was  necessary  to  procure  their  own  re- 
al and  solid  happiness  ? 

XXIII.  Civil  liberty  is  therefore,  in  the  main,  nothing  more 
than  natural  liberty,  divested  of  that  part  of  it,  which  formed 
the  independence  of  individuals,  by  the  authority,  which  they 
have  conferred  on  their  sovereign. 


POLITIC  LAW.  ai 

XXIV.  This  liberty  is  still  attended  with  two  considerable 
advantages,  which  natural  liberty  had  not.  The  first  is  the 
right  of  insisting,  that  their  sovereign  shall  make  good  use  of 
his  authority,  agreeably  to  the  purposes,  for  which  he  was  in- 
trusted with  it.  The  second  is  the  security,  which  prudence  re- 
quires, that  the  subjects  should  reserve  to  themselves  for  the  ex- 
ecution of  their  former  right,  a  security  absolutely  necessary, 
and  without  which  the  people  can  never  enjoy  any  solid  liberty. 

XXV.  Let  us  therefore  conclude,  that,  to  give  an  adequate 
definition  of  civil  liberty,  we  must  say,  that  it  is  natural  liberty 
itself,  divested  of  that  part,  which  constituted  the  independence 
of  individuals,  by  the  authority,  which  it  confers  on  sovereigns, 
and  attended  with  a  right  of  insisting  on  his  making  a  good  use 
of  his  authority,  and  with  a  moral  security,  that  this  right  will 
have  its  effect. 

XXVI.  Since  civil  liberty  therefore  is  far  preferable  to  that 
of  nature,  we  may  safely  conclude,  that  the  civil  state,  which 
procures  this  liberty  to  mankind,  is  of  all  human  states  the  most 
perfect,  the  most  reasonable,  and  of  course  the  true  natural  state 
of  man. 

XXVII.  And  indeed,  since  man,  by  his  nature,  is  a  free  and 
intelligent  being,  capable  of  discovering  his  state  by  himself,  as 
well  as  its  ultimate  end,  and  of  taking  the  necessary  measures 
to  attain  it,  it  is  properly  in  this  point  of  view,  that  we  must  con- 
sider his  natural  state  j  that  is,  the  natural  state  of  man  must  be  that, 
which  is  most  agreeable  to  his  nature,  to  his  constitution,  to  reason, 
to  the  good  use  of  his  faculties,  and  to  his  ultimate  end  ;  all  which 
circumstances  perfectly  agree  with  the  civil  state.  In  short,  as 
the  institution  of  government  and  supreme  authority  brings 
men  back  to  the  observance  of  the  laws  of  nature,  and  conse- 
quently to  the  road  of  happiness,  it  makes  them  return  to  theit 
natural  state,  from  which  they  had  strayed  by  the  bad  use, 
which  they  made  of  their  liberty. 

XXVIII.  The  reflections  we  have  here  made  on  the  advan- 
tages, which  men  derive  from  government,  deserve  very  great 
attention. 

i .  They  are  extremely  proper  for  removing  the  false  notions, 
which  most  people  have  upon  this  subject  5  as  if  the  civil  state 


22  THE  PRINCIPLES  OF 

eould  not  be  established  but  in  prejudice  to  their  natural  liber- 
ty ;  and  as  if  government  had  been  invented  only  to  satisfy  the 
ambition  of  designing  men,  contrary  to  the  interest  of  the  rest 
of  the  community. 

'1.  They  inspire  mankind  with  a  love  and  respect  for  so  sal- 
utary an  institution,  disposing  them  thus  to  submit  voluntarily 
to  whatever  the  civil  society  requires  of  them,  from  a  conviction, 
that  the  advantages  thence  derived  are  very  considerable. 

3.  They  may  likewise  tend  greatly  to  increase  the  love  of 
one's  country,  the  first  seeds  of  which  nature  herself  has  im- 
planted, as  it  were,  in  the  hearts  of  all  mankind,  in  order  to 
promote,  as  it  most  effectually  does,  the  happiness  of  society. 
Sextus  Empiricus  relates,  "  that  it  was  a  custom  among  the  an- 
"  cient  Persians,  upon  the  death  of  a  king,  to  pass  five  days  in 
"  a  state  of  anarchy,  as  an  inducement  to  be  more  faithful  to 
"  his  successor,  from  the  experience  they  acquired  of  the  in- 
"  conveniences  of  anarchy,  of  the  many  murders,  robberies,  and 
"  every  other  mischief,  with  which  it  is  pregnant."* 

XXIX.  As  these  reflections  are  proper  for  removing  the 
prejudices  of  private  people,  so  they  likewise  contain  most  ex- 
cellent instructions  even  for  sovereigns.  For  is  there  any  thing 
better  adapted  for  making  princes  sensible  of  the  full  extent  of 
their  duty,  than  to  reflect  seriously  on  the  ends,  which  the  peo- 
ple proposed  to  themselves,  in  entrusting  them  with  their  liber- 
ty, that  is,  with  whatever  is  most  valuable  to  them  ;  and  on  the 
engagements  into  which  they  entered,  by  charging  themselves 
with  so  sacred  a  deposit  ?  When  mankind  renounced  their  in- 
dependence and  natural  liberty,  by  giving  masters  to  themselves, 
it  was  in  order  to  be  sheltered  from  the  evils,  with  which  they 
were  afflicted,  and  in  hopes,  that,  under  the  protection  and  care 
of  their  sovereign,  they  should  meet  with  solid  happiness.  Thus 
have  we  seen,  that  by  civil  liberty  mankind  acquired  a  right  of 
insisting  upon  their  sovereign's  using  his  authority  agreeable  to 
the  design,  with  which  he  was  entrusted  with  it,  which  was  to 
render  their  subjects  wise  and  virtuous,  and  thereby  to  promots 
their  real  felicity.  In  a  word,  whatever  has  been  said  concern- 
ing the    advantages  of  the  civil  state,  in  preference  to   that  of 

*  Advers.  Mathemat.  lib.  %.  sect.  ZZ-     Vid.  Herodot.  lib.  1.  cap.  96,  &  seq. 


POLITIC  LAW.  23 

aature,  supposes  this  state  in  its  due  perfection  ;   and  that  both 
subjects  and  sovereign  discharge  their  duties  towards  each  other, 

CHAP.  IV. 

Of  the  essential  constitution  of  states,  and  of  the  manner ,  in  ivhich 
they  are  formed. 


I.  Al 


.FTER  treating  of  the  original  of  civil  societies,  the 
natural  order  of  our  subject  leads  us  to  enquire  into  the  essen- 
tial constitution  of  states,  that  is,  into  the  manner,  in  which 
they  are  formed,  and  the  internal  frame  of  those  surprising 
structures. 

II.  From  what  has  been  said  in  the  preceding  chapter  it  fol- 
lows, that  the  only  effectual  method,  which  mankind  could  em- 
ploy in  order  to  screen  themselves  from  the  evils,  with  which 
they  were  afflicted  in  the  state  of  nature,  and  to  procure  to 
themselves  all  the  advantages  wanting  to  their  security  and  hap- 
piness, must  be  drawn  from  man  himself,  and  from  the  assist- 
ance of  society. 

III.  For  this  purpose  it  was  necessary,  that  a  multitude  of 
people  should  unite  in  so  particular  a  manner  that  their  preser- 
vation must  depend  on  each  other,  to  the  end,  that  they  remain 
under  a  necessity  of  mutual  assistance,  and,  by  this  junction  of 
strength  and  interests,  be  able  not  only  to  repel  the  insults, 
against  which  each  individual  could  not  guard  so  easily, 
but  also  to  contain  those,  who  should  attempt  to  deviate 
from  their  duty,  and  to  promote  more  effectually  their  common 
advantage.  Let  us  explain  more  particularly  how  this  could 
be  effected. 

IV.  Two  things  were  necessary  for  this  purpose. 

1 .  It  was  necessary  to  unite  forever  the  wills  of  all  the  mem- 
bers of  the  society  in  such  a  manner,  that  from  that  time  for- 
ward they  should  never  desire  but  one  and  the  same  thing,  in 
whatever  relates  to  the  end  and  purpose  of  society.  2.  It 
was  requisite  afterwards  to  establish  a  supreme  power,  support- 
ed by  the  strength  of  the  whole  body  (by  which  means  they 
might   over  awe  those,  who  should  be  inclinable  to  disturb  the 


24  THE  PRINCIPLES  OF 

peace)  and  to  inflict  a  present  and  sensible  evil  on  such,  as  should 
attempt  to  act  contrary  to  the  public  good. 

V.  It  is  from  this  union  of  wills  and  of  strength,  that  the 
body  politic  or  state  results ;  and  without  it  we  could  never 
conceive  a  civil  society.  For  let  the  number  of  confederates  be 
ever  so  great,  if  each  man  was  to  follow  his  own  private  judg- 
ment in  things,  relating  to  the  public  good,  they  would  only 
embarrass  one  another ;  and  the  diversity  of  inclinations  and 
judgments,  arising  from  the  levity  and  natural  inconstancy  of 
man,  would  soon  demolish  all  concord,  and  mankind  would  thus 
relapse  into  the  inconveniences  of  the  state  of  nature.  Besides, 
a  society  of  that  kind  could  never  act  long  in  concert,  and  for 
the  same  end,  not  maintain  itself  in  that  harmony,  which  con- 
stitutes its  whole  strength,  without  a  superior  power,  whose 
business  it  is  to  serve  as  a  check  to  the  inconstancy  and  malice 
cf  man,  and  to  oblige  each  individual  to  direct  all  his  actions 
to  the  public  utility. 

VI.  All  this  is  performed  by  means  of  covenants  ;  for  this 
union  of  wills  in  one  and  the  same  person  could  never  be  so  ef- 
fected, as  to  actually  destroy  the  natural  diversity  of  inclinations 
and  sentiments  ;  but  it  is  done  by  an  engagement,  which  every 
man  enters  into,  of  submitting  his  private  will  to  that  of  a  sin- 
gle person,  or  of  an  assembly  ;  insomuch  that  every  resolution 
of  this  person  or  assembly,  concerning  things  relative  to  die 
public  security  or  advantage,  must  be  considered,  as  the  posi- 
tive will  of  all  in  general,  and  of  each  in  particular. 

VII.  With  regard  to  the  union  of  strength,  which  produces 
the  sovereign  power,  it  is  not  formed  by  each  man's  communi- 
cating physically  his  strength  to  a  single  person,  so  as  to  remain 
utterly  weak  and  impotent  •,  but  by  a  covenant  or  engagement, 
whereby  all  in  general  and  each  in  particular  oblige  themselves 
to  make  no  use  of  their  strength,  but  in  such  a  manner,  as  shall 
be  prescribed  to  them  by  the  person,  on  whom  they  have,  with 
one  common  accord,  conferred  the  supreme  authority. 

VIII.  By  this  union  of  the  body  politic  under  one  and  the 
same  chief,  each  individual  acquires,  in  some  measure,  as  much 
strength,  as  the  whole  society  united.  Suppose  for  instance 
there  are  a  million  of  men  in  the  commonwealth,  each  man  is 


POLITIC  LAW.  25 

able  to  resist  this  million,  by  means  of  their  subjection  to 
the  sovereign,  who  keeps  them  all  in  awe,  and  hinders  them 
from  hurting  one  another.  This  multiplication  of  strength  in 
the  body  politic  resembles  that  of  each  member  in  the  human 
body  ;  take  them  asunder,  and  their  vigor  is  no  more  ;  but  by 
their  mutual  union  the  strength  of  each  increases,  and  they 
form  altogether  a  robust  and  animated  body. 

IX.  The  state  may  be  defined  a  society,  by  which  a  multitude 
of  people  unite  together,  under  the  dependence  of  a  sovereign, 
in  order  to  find,  through  his  protection  and  care,  the  happiness, 
to  which  they  naturally  aspire.  The  definition,  which  Tully 
gives,  amounts  nearly  to  the  same.  Multitudo  juris  consensu,  et 
utilitatis  communione  sociata.  A  multitude  of  people  united  to- 
gether by  a  common  interest,  and  by  common  laws,  to  which 
they  submit  with  one  accord. 

X.  The  state  is  therefore  considered  as  a  body,  or  as  a  moral 
person,  of  which  the  sovereign  is  the  chief  or  head,  and  the  sub- 
jects are  the  members ;  in  consequence  of  which  we  attribute 
to  this  person  ceitain  actions  peculiar  to  him,  certain  rights,  priv- 
ileges, and  possessions,  distinct  from  those  of  each  citizen,  and 
to  which  neither  each  citizen,  nor  many,  nor  even  altogether 
can  pretend  ;   but  the  sovereign  only. 

XI.  It  is  moreover  this  union  of  several  persons  in  one  body, 
produced  by  the  concurrence  of  the  wills  and  the  strength  of 
every  individual  in  one  and  the  same  person,  that  distinguishes 
the  state  from  a  multitude.  For  a  multitude  is  only  an  assem- 
blage of  several  persons,  each  of  whom  has  his  own  will,  with  the 
liberty  of  judging,  according  to  his  own  notions,  of  whatever  is 
proposed  to  him,  and  of  determining  as  he  pleases  ;  for  whiclu 
reason  they  can  be  said  to  have  only  one  will.  Whereas  the 
state  is  a  body,  or  a  society,  animated  by  one  only  soul,  which 
directs  all  its  motions,  and  makes  all  its  members  act  after  a 
constant  and  uniform  manner,  with  a  view  to  one  and  the  same 
end,  namely  the  public  utility. 

XII.  But  it  will  be  here  objected,  that  if  the  union  of  the 
will  and  of  the  strength  of  each  member  of  the  society,  in  the 
person  of  the  sovereign,  destroy  neither  the  will  nor  the  natu- 
ral force  of  each  individual  j  if  they  always  continue  in  possession 

D 


fl6  THE  PRINCIPLES  OF 

of  it ;  and  if  they  are  able  in  fact  to  employ  it  against  the  sov- 
ereign himself ;  what  does  the  force  of  the  state  consist  in,  and 
what  is  it,  that  constitutes  the  security  of  this  society  ?  I  an- 
swer, that  two  things  contribute  chiefly  to  maintain  the  state, 
and  the  sovereign,  who  is  the  soul  of  it. 

The  first  is  the  engagement  itself,  by  which  individuals  have 
subjected  themselves  to  the  command  of  a  sovereign ;  an  en- 
gagement, which  derives  a  considerable  force  both  from  divine 
authority,  and  from  the  sanction  of  an  oath.  But  as  to  vicious 
and  ill  disposed  minds,  on  whom  these  motives  make  no  impres- 
sion, the  strength  of  the  government  consists  chiefly  in  the  fear 
of  those  punishments,  which  the  sovereign  may  inflict  upon 
them,  by  virtue  of  the  power,  with  which  he  is  invested. 

XIII.  Now  since  the  means,  by  which  the  sovereign  is  enabled 
to  compel  rebellious  and  refractory  persons  to  their  duty,  consists 
in  this,  that  the  rest  of  the  subjects  join  their  strength  with  him 
for  this  end  (for  were  it  not  for  this,  he  would  have  no  more 
power,  than  the  lowest  of  his  subjects)  it  follows  that  it  is  the 
ready  submission  of  good  subjects,  that  furnishes  the  sovereign 
with  the  means  of  repressing  the  insolent,  and  of  maintaining 
his  authority. 

XIV.  But  provided  a  sovereign  shows  ever  so  small  an  at- 
tachment to  his  duty,  he  will  always  find  it  easy  to  fix  the  better 
part  of  his  subjects  in  his  interest,  and  of  course  to  have  the 
greatest  part  of  the  strength  of  the  state  in  his  hands,  and  to 
maintain  the  authority  of  the  government.  Experience  has  al- 
ways shown,  that  princes  need  only  a  common  share  of  virtue 
to  be  adored  by  theii  subjects.  We  may  therefore  affirm,  that 
the  sovereign  is  capable  of  deriving  from  himself  the  means, 
necessary  for  the  support  of  his  authority ;  and  that  a  prudent 
exercise  of  the  sovereignty,  pursuant  to  the  end,  for  which  it  was 
designed,  constitutes  at  the  same  time  the  happiness  of  the  peo- 
ple, and,  by  a  necessary  consequence,  the  greatest  security  of 
the  government  in  the  person  of  the  sovereign. 

XV.  Tracing  the  principles  here  established  in  regard  to  the 
formation  of  states,  &c.  were  we  to  suppose,  that  a  multitude 
of  people,  who  had  lived  hitherto  independent  of  each  other. 


POLITIC  LAW.  27 

wanted  to  establish  a  civil  society,  we  shall  find  a  necessity  for 
different  covenants,  and  for  a  general  decree. 

I.  The  first  covenant  is  that,  by  which  each  individual  en- 
gages with  all  the  rest  to  join  forever  in  one  body,  and  to  regu- 
late, with  one  common  consent,  whatever  regards  their  pres- 
ervation and  their  common  security.  Those,  who  do  not  en- 
ter into  this  first  engagement,  remain  excluded  from  the  new 
society. 

\  2.  There  must  afterwards  be  a  decree  made  for  settling  the 
form  of  government  -,  otherwise  they  could  never  take  any  fixt 
measures  for  promoting  effectually,  and  in  concert,  the  public 
security  and  welfare. 

3.  In  fine,  when  once  the  form  of  government  is  settled, 
there  must  be  another  covenant,  whereby,  after  having  pitched 
upon  one  or  more  persons  to  be  invested  with  the  power  of  gov- 
erning, those,  on  whom  this  supreme  authority  is  conferred,  en- 
gage to  consult  most  carefully  the  common  security  and  advan- 
tage, and  the  others  promise  fidelity  and  allegiance  to  the  sov- 
ereign. This  last  covenant  includes  a  submission  of  the  strength 
and  will  of  each  individual  to  the  will  of  the  head  of  the  socie- 
ty, as  far  as  the  public  good  requires  ;  and  thus  it  is,  that  a  reg- 
ular state  and  perfect  government  are  formed. 

XVI.  What  we  have  hitherto  delivered  may  be  further  illus- 
trated by  the  account  we  have  in  history  concerning  the  foun- 
dation of  the  Roman  state.  At  first  we  behold  a  multitude  of 
people,  who  flock  together  with  a  view  of  settling  on  the  banks 
of  the  Tiber ;  afterwards  they  consult  about  what  form  of  gov- 
ernment they  shall  establish,  and,  the  party  for  monarchy  pre- 
vailing, they  confer  the  supreme  authority  on  Romulus.* 

XVII.  And  though  we  are  strangers  to  the  original  of  most 
states,  yet  we  must  not  imagine,  that  what  has  been  here  said 
concerning  the  manner,  in  which  civil  societies  are  formed,  is 
a  mere  fiction.  For,  since  it  is  certain,  that  all  civil  societies 
had  a  beginning,  it  is  impossible  to  conceive  how  the  members, 
of  which  they  are  composed,  could  agree  to  live  together,  de~> 
pendant  on  a  supreme  authority,  without  supposing  the  cove- 
nants abovementioned. 

*  See  Dionysius  Halicam.  lib.  a.  in  the  beginmrjj. 


28  THE  PRINCIPLES  OF 

XVIII.  And  yet  all  political  writers  do  not  explain  the  ori- 
gin of  states  after  our  manner.  Some  there  are,*  who  pretend 
that  states  are  formed  merely  by  the  covenant  of  the  subjects 
with  one  another,  by  which  each  man  enters  into  an  engage- 
ment with  all  the  rest  not  to  resist  the  will  of  the  sovereign,  upon 
condition,  that  the  rest  on  their  side  submit  to  the  same  engage- 
ment ;  but  they  pretend,  that  there  is  no  original  compact  be- 
tween the  sovereign  and  the  subjects. 

XIX.  The  reason,  why  these  writers  give  this  explication  of 
the  matter,  is  obvious.  Their  design  is  to  give  an  arbitrary 
and  unlimited  authority  to  sovereigns,  and  to  deprive  the  sub- 
jects of  every  means  of  withdrawing  their  allegiance  upon  any 
pretext  whatever,  notwithstanding  the  bad  use  the  sovereign 
may  make  of  his  uthority.  For  this  purpose  it  was  absolutely 
necessary  to  free  kings  from  all  restraint  of  compact  or  cove- 
nant between  them  and  their  subjects,  which,  without  doubt, 
is  the  chief  instrument  of  limiting  their  power. 

XX.  But  notwithstanding  it  is  of  the  utmost  importance  to 
mankind  to  support  the  authority  of  kings,  and  to  defend  it 
against  the  attempts  of  restless  and  mutinous  spirits,  yet  we 
must  not  deny  evident  truths,  or  refuse  to  acknowledge  a  cov-. 
enant,  in  which  there  is  manifestly  a  mutual  promise  of  per-, 
forming  things,    to  which  they  were  not  before  obliged. 

XXI.  When  I  submit  voluntarily  to  a  prince,  I  promise  him 
allegiance  on  condition,  that  he  will  protect  me  ;  the  prince  on 
his  side  promises  me  his  protection  on  condition,  that  I  will 
obey  him.  Before  this  promise,  I  was  not  obliged  to  obey 
him,  nor  was  he  obliged  to  protect  me,  at  least  by  any  perfect 
obligation  -,  it  is  therefore  evident,  that  there  must  be  a  mutual 
engagement. 

XXII.  But  there  is  still  something  more  ;  for,  so  far  is  the 
system,  we  are  here  refuting,  from  strengthening  the  supreme 
authority,  and  from  screening  it  from  the  capricious  invasions 
of  the  subject,  that,  on  the  contrary,  nothing  is  of  a  more  dan- 
gerous consequence  to  sovereigns,  than  to  fix  their  right  on 
such  a  foundation.  For  if  the  obligation  of  the  subjects  towards 
their  princes  is  founded  merely  on  the  mutual  covenant  between 

'*  A.  Hobbes,  de  Cive,  cap.  t.  §  7. 


POLITIC  LAW.  29 

the  subjects,  by  which  each  man  engages  for  the  sake  of  the 
rest  to  obey  the  sovereign,  on  condition,  that  the  rest  do  the 
same  for  his  sake ;  it  is  evident,  that  at  this  rate  every  subject 
makes  the  force  of  his  engagement  depend  on  the  execution  of 
that  of  every  other  fellow  subject  •,  and  consequently,  if  any  one 
refuses  to  obey  the  sovereign,  all  the  rest  stand  released  from 
their  allegiance.  Thus  by  endeavouring  to  extend  the  rights  of 
sovereigns  beyond  their  just  limits,  instead  of  strengthening,  they 
rather  inadvertently  weaken  them. 

CHAP.  V. 

Of  the  sovereign ,  sovereignty,  and  the  subjects. 

T 

I.  A.  HE  sovereign  in  a  state  is  that  person,  who  has  a 
right  of  commanding  in  the  last  resort. 

II.  As  to  the  sovereignty  we  must  define  it  the  right  of 
commanding  civil  society  in  the  last  resort,  which  right  the 
members  of  this  society  have  conferred  on  one  and  the  same 
person,  with  a  view  to  preserve  order  and  security  in  the  com- 
monwealth, and  in  general  to  procure,  under  his  protection  and 
through  his  care,  their  own  real  happiness,  and  especially  the 
sure  exercise  of  their  liberty. 

III.  I  say  in  the  first  place,  that  sovereignty  is  the  right  of 
commanding  civil  society  in  the  last  resort,  to  show  that  the  na- 
ture of  sovereignty  consists  chiefly  in  two  things. 

The  first  is  the  right  of  commanding  the  members  of  the  so- 
ciety, that  is,  of  directing  their  actions  with  authority,  or  with  a 
power  of  compelling. 

The  second  is,  that  this  right  ought  to  be  that  of  command- 
ing in  the  last  resort  in  such  a  manner,  that  every  private  per- 
son be  obliged  to  submit,  without  a  power  left  to  any  man  of 
resisting.  Otherwise,  if  this  authority  was  not  superior  to  ev- 
ery other  upon  earth,  it  could  establish  no  order  or  security  in 
the  commonwealth,  though  these  are  the  ends,  for  which  it  was 
established. 

IV.  In  the  second  place  I  say,  that  it  is  a  right  conferred  on 
a  person,  and  not  on  a  man,    to  denote  that  this  person  may 


30  THE  PRINCIPLES  OF 

be  not  only  a  single  man,  but  likewise  a  multitude  of  men,  unit- 
ed in  council,  and  forming  only  one  will,  by  means  of  a  plural- 
ity of  suffrages,  as  we  shall  more  particularly  explain  hereafter. 

V.  Thirdly  I  say  to  one  and  the  same  person  to  show,  that 
sovereignty  can  admit  of  no  share  or  partition,  that  there  is  no 
sovereign  at  all,  when  there  are  many,  because  there  is  no 
one,  who  commands  then  in  the  last  resort,  and  none  of  them 
being  obliged  to  give  way  to  the  other,  their  competition  must 
necessarily  throw  every  thing  into  disorder  and  confusion. 

VI.  I  add  in  fine  to  procure  their  own  happiness,  &c.  in  or- 
der to  point  out  the  end  of  sovereignty,  that  is  the  welfare  of 
the  people.  When  sovereigns  once  lose  sight  of  this  end,  when 
they  pervert  it  to  their  private  interests,  or  caprices,  sovereign- 
ty then  degenerates  into  tyranny,  and  ceases  to  be  a  legitimate 
authority.  Such  is  the  idea,  we  ought  to  form  of  a  sovereign 
and  of  sovereignty. 

VII.  All  the  other  members  of  the  state  are  called  subjects, 
that  is,  they  are  under  an  obligation  of  obeying  the  sovereign. 

VIII.  Now  a  person  becomes  a  member  or  subject  of  a  state 
two  ways,  either  by  an  express  or  by  a  tacit  covenant. 

IX.  If  by  an  express  covenant,  the  thing  admits  of  no  diffi- 
culty. But,  with  regard  to  a  tacit  covenant,  we  must  observe, 
that  the  first  founders  of  stateSj  and  all  those,  who  afterwards 
became  members  thereof,  are  supposed  to  have  stipulated,  that 
their  children  and  descendants  should,  at  their  coming  into  the 
world,  have  the  right  of  enjoying  those  advantages,  which  are 
common  to  all  the  members  of  the  state,  provided  nevertheless 
that  these  descendants,  when  they  attain  to  the  use  of  reason, 
be  on  their  part  willing  to  submit  to  the  government,  and  to. 
acknowledge  the  authority  of  the  sovereign? 

X.  I  said  provided  the  descendants  acknowledged  the  author- 
ity of  the  sovereign  j  for  the  stipulation  of  the  parents  cannot, 
in  its  own  nature,  have  the  force  of  subjecting  the  children 
against  their  will  to  an  authority,  to  which  they  would  not  of 
themselves  choose  to  submit.  Hence  the  authority  of  the  sove- 
reign over  the  children  of  the  members  of  the  state,  and  the, 
right,  on  the  other  hand,  which  these  children  Ijave  to  the  pro* 


POLITIC  LAW.  31 

tection  of  the  sovereign,  and  to  the  advantages  of  the  govern- 
ment, are  founded  oh  mutual  consent. 

XI.  Now  if  the  children  of  members  of  the  state,  upon  at- 
taining to  the  years  of  discretion,  are  willing  to  live  in  the  place 
of  their  parentage,  or  in  their  native  country,  they  are  by  this 
very  act  supposed  to  submit  themselves  to  the  power,  that  gov- 
erns the  state,  and  consequently  they  ought  to  enjoy,  as  mem- 
bers ©f  that  state,  the  advantages  naturally  arising  from  it. 
This  is  the  reason  likewise,  that,  when  once  the  sovereign  is 
acknowledged,  he  has  no  occasion  to  tender  the  oath  of  allegi- 
ance to  the  children,  who  are  afterward  born  in  his  dominions. 

XII.  Besides,  it  is  a  maxim,  which  has  been  ever  consider- 
ed, as  a  general  law  of  government,  that  whosoever  merely  en- 
ters upon  the  territories  of  a  state,  and  by  a  much  stronger  rea- 
son those,  who  are  desirous  of  enjoying  the  advantages,  which 
are  to  be  found  there,  are  supposed  to  renounce  their  natural 
liberty,  and  to  submit  to  the  established  laws  and  government, 
so  far  as  the  public  and  private  safety  require.  And,  if  they 
refuse  to  do  this,  they  may  be  considered  as  enemies,  in  this 
sense  at  least,  that  the  government  has  a  right  to  expel  them  the 
country  ;  and  this  is  likewise  a  tacit  covenant,  by  which  they 
make  a  temporary  submission  to  the  government. 

XIII.  Subjects  are  sometimes  called  cives,  or  members  of  the 
civil  state  ;  some  indeed  make  no  distinction  between  these  two 
terms,  but  I  think  it  is  better  to  distinguish  them.  The  appel- 
lation of  civis  ought  to  be  understood  only  of  those,  who  share 
in  all  the  advantages  and  privileges  of  the  association,  and 
who  are  properly  members  of  the  state  either  by  birth,  or  in 
some  other  manner.  All  the  rest  are  rather  inmates,  strang- 
ers, or  temporary  inhabitants,  than  members.  As  to  women 
and  servants,  the  title  of  member  is  applicable  to  them  only 
inasmuch  as  they  enjoy  certain  rights,  in  virtue  of  their  depend- 
ance  on  their  domestic  governor,  who  is  properly  a  member  of 
the  state  j  and  all  this  depends  on  the  laws  and  particular  cus- 
toms  of  each  government. 

O 

XIV.  To  proceed  ;  members,  besides  the  general  relation  of 
being  united  in  the  same  civil  society,  have  likewise  many  oth- 
er particular  relations,  which  are  reducible  to  two  principal 
ones. 


1%  THE  PRINCIPLES  OF 

The  first  is,  when  private  people  compose  particular  bodies  or 
corporations. 

The  second  is,  when  sovereigns  entrust  particular  persons 
with  some  share  of  the  administration. 

XV.  Those  particular  bodies  are  called  Companies,  Chambers, 
Colleges,  Societies,  Communities.  But  it  is  to  be  observed,  that 
all  these  particular  societies  are  finally  subordinate  to  the  sove- 
reign. 

XVI.  Besides,  we  may  consider  some  as  more  ancient  than 
the  establishment  of  civil  states,  and  others  as  formed  since. 

XVII.  The  latter  are  likewise  either  public,  such  as  are  estab- 
lished by  the  authority  of  the  sovereign,  and  then  they  generally 
enjoy  some  particular  privileges,  agreeably  to  their  parents ;  or 
private,  such  as  are  formed  by  private  people. 

XVIII.  In  fine,  these  private  bodies  are  either  lawful  or  un- 
lawful. The  former  are  those,  which,  having  nothing  in  their 
nature  contrary  to  good  order,  good  manners,  or  the  authority 
of  the  sovereign,  are  supposed  to  be  approved  of  by  the  state, 
though  they  have  not  received  any  formal  sanctidn.  With  res- 
pect to  unlawful  bodies,  we  mean  not  only  those,  whose  mem- 
bers unite  for  the  open  commission  of  any  crime,  such  as  gangs 
of  robbers,  thieves,  pirates,  banditti,  but  likewise  all  other  kinds 
of  confederacies,  which  the  subjects  enter  into  without  the  con- 
sent of  the  sovereign,  and  contrary  to  the  end  of  civil  society. 
These  engagements  are  called  cabals,  factions,  conspiracies. 

XIX.  Those  members,  whom  the  sovereign  entrusts  with 
some  share  of  administration,  which  they  exercise  in  his  name 
and  by  his  authority,  have  in  consequence  thereof  particular  re- 
lations to  the  rest  of  the  members,  and  are  under  stronger  en- 
gagements to  the  sovereign  ;  these  are  called  ministers,  public  of- 
ficers, or  magistrates. 

XX.  Such  ai^  the  regents  of  a  kingdom,  during  a  minority, 
the  governors  of  provinces  and  towns,  the  commanders  of  ar- 
mies, the  directors  of  the  treasury,  the  presidents  of  courts  of 
justice,  ambassadors,  or  envoys  to  foreign  powers,  See.  As  all 
these  persons  are  entrusted  with  a  share  of  the  administration, 
they  represent  the  sovereign,  and  it  is  they,  who  have  properly 
the  name  of  public  ministers. 


POLITIC  LAW. 

XXI.  Others  there  are,  who  assist  merely  in  the  execution 
of  public  business,  such  as  counsellors,  who  only  give  their  opin- 
ion, secretaries,  receivers  of  the  public  revenue,  soldiers,  subal- 
tern officers,  &c. 

CHAP.  VI. 

Of  the  immediate  source}  and  foundation  of  sovereignty. 

I.  X  HOUGH  what  has  been  said  in  the  fourth  chapter 
concerning  the  structure  of  states  is  sufficient  to  show  the  orig- 
inal and  source  of  sovereignty,  as  well  as  its  real  foundation  ;  yet, 
as  this  is  one  of  those  questions,  on  which  political  writers  are 
greatly  divided,  it  will  not  be  amiss  to  examine  it  somewhat 
more  particularly  ;  and  what  remains  still  to  be  said  upon  this 
subject  will  help  to  give  us  a  more  complete  idea  of  the  nature 
and  end  of  sovereignty. 

II.  When  we  inquire  here  into  the  source  of  sovereignty, 
our  intent  is  to  know  the  nearest  and  immediate  source  of  it  ; 
now  it  is  certain,  that  the  supreme  authority,  as  well  as  the  ti- 
tle, on  which  this  power  is  established,  and  which  constitutes  its 
right,  is  derived  immediately  from  the  very  covenants,  which 
constitute  civil  society,  and  give  birth  to  government* 

III.  And  indeed,  upon  considering  the  primitive  state  of 
man,  it  appears  most  certain,  that  the  appellations  of  sovereigns 
and  subjects,  masters  and  slaves,  are  unknown  to  nature.  Na- 
ture has  made  us  all  of  the  same  species,  all  equal,  all  free  and 
independent  of  each  other  ;  in  short  she  was  willing  that  those 
on  whom  she  has  bestowed  the  same  faculties,  should  have  all 
the  same  rights.  It  is  therefore  beyond  all  doubt,  that,  in  this 
primitive  state  of  nature,  no  man  has  of  himself  an  original 
right  of  commanding  others,  or  any  title  to  sovereignty. 

i  IV.  There  is  none  but  God  alone,  that  has,  in  consequence 
of  his  nature  and  perfections,  a  natural,  essential,  and  inherent- 
right  of  giving  laws  to  mankind,  and  of  exercising  an  absolute 
sovereignty  over  them.  The  case  is  otherwise  between  man 
and  man  ;  they  are  in  their  own  nature  as  independent  of  one 
another,  as  they  are  dependent  on  God.  This  liberty  and  in-* 
E 


34  THE  PRINCIPLES  OF 

dependence  is  therefore  a  right  naturally  belonging  to  man,  of 
which  it  would  be  unjust  to  deprive  him  against  his  will. 

V.  But  if  this  be  the  case,  and  there  is  yet  a  supreme  au- 
thority subsisting  amongst  mankind,  whence  can  this  authority 
arise,  unless  it  be  from  the  compacts  or  covenants,  which  men 
have  made  amongst  themselves  upon  this  subject  ?  For,  as  we 
have  a  right  of  transferring  our  property  to  another  by  a  cov- 
enant ;  so,  by  a  voluntary  submission,  a  person  may  convey  to 
another,  who  accepts  of  the  renunciation,  the  natural  right  he 
had  of  disposing  of  his  liberty  and  natural  strength. 

VI.  It  must  therefore  be  agreed,  that  sovereignty  resides 
originally  in  the  people,  and  in  each  individual  with  regard  to 
himself  ;  and  that  it  is  the  transferring  and  uniting  the  several 
rights  of  individuals  in  the  person  of  the  sovereign,  that  con- 
stitutes him  such,  and  really  produces  sovereignty.  It  is  be- 
yond all  dispute  for  example,  that,  when  the  Romans  chose 
Romulus  and  Numa  for  their  kings,  they  must  have  conferred 
upon  them,  by  this  very  act,  the  sovereignty,  which  those  prin- 
ces were  not  possessed  of  before,  and  to  which  they  had  cer- 
tainly no  other  right,  than  what  wa3  derived  from  the  election 
of  the  people. 

VII.  Nevertheless,  though  it  be  evident,  that  the  immediate 
original  of  sovereignty  is  owing  to  human  covenants,  yet  noth- 
ing can  hinder  us  from  affirming,  with  good  ground,  that  it  is 
of  divine,  as  well  as  human  right. 

VIII.  And  indeed  right  reason  having  made  it  plainly  ap- 
pear, after  the  multiplication  of  mankind,  that  the  establish- 
ment of  civil  societies  and  of  a  supreme  authority  was  abso- 
lutely necessary  for  the  order,  tranquillity,  and  preservation  of 
the  species,  it  is  as  convincing  a  proof,  that  this  institution  is 
agreeable  to  the  designs  of  Providence,  as  if  God  himself  had 
declared  it  to  mankind  by  a  positive  revelation.  And,  since 
God  is  essentially  fond  of  order,  he  is  doubtless  willing,  that 
there  should  be  a  supreme  authority  upon  earth,  which  alone 
is  capable  of  procuring  and  supporting  that  order  amongst  man- 
kind, by  enforcing  the  observance  of  the  laws  of  nature. 


POLITIC  LAW.  ^S 

IX.  There  is  a  beautiful  passage  of  Cicero  to  this  purpose.* 
Nothing  is  more  agreeable  to  the  suprtme  Deity,  that  governs  this 
universe,  than  civil  societies  laiufttlly  established. 

X.  When  therefore  we  give  to  sovereigns  the  title  of  God's 
vicegerents  upon  earth,  this  does  not  imply,  that  they  derive 
their  authority  immediately  from  God ;  but  it  signifies  only, 
that  by  means  of  the  power  lodged  in  their  hands,  and  with 
which  the  people  have  invested  them,  they  maintain,  agreeably 
to  the  views  of  the  Deity,  both  order  and  peace,  and  thus  pro- 
cure the  felicity  of  mankind. 

XL  But  if  these  magnificent  titles  add  a  considerable  lustre 
to  sovereignty,  and  render  it  more  respectable,  they  afford  like- 
wise, at  the  same  time,  an  excellent  lesson  to  princes.  For 
they  cannot  deserve  the  title  of  God's  vicegerents  upon  earth, 
but  inasmuch  as  they  make  use  of  their  authority  pursuant  to 
the  views  and  purposes,  for  which  they  were  entrusted  with  it, 
and  agreeably  to  the  intention  of  the  Deity,  that  is,  for  the 
happiness  of  the  people,  by  using  all  their  endeavors  to  inspire 
them  with  virtuous  principles. 

XII.  This  without  doubt  is  sufficient  to  make  us  look  upon 
the  original  of  government,  as  sacred  ;  and  to  induce  subjects 
to  show  submission  and  respect  to  the  person  of  the  sovereign. 
But  there  are  politcal  writers,  who  carry  the  thing  further,  and 
maintain  that  it  is  God,  who  confers  immediately  the  supreme 
power  on  princes,  without  any  intervention  or  concurrence  of 
men. 

XIII.  For  this  purpose,  they  make  a  distinction  betwixt  the 
cause  of  the  state,  and  the  cause  of  sovereignty.  They  confess 
indeed,  that  states  are  formed  by  covenants,  but  they  ■  insist, 
that  God  himself  is  the  immediate  cause  of  the  sovereignty. 
According  to  their  notions,  the  people,  who  choose  to  them- 
selves a  king,  do  not  by  this  act  confer  the  supreme  authority 
upon  him,  they  only  point  out  the  person,  whom  heaven  is  to 
entru?t  with  it.  Thus  the  consent  of  the  people  to  the  domin- 
ion  of  one  or  more  persons,  may  be  considered  as  a  channel, 

*  Nihil  est  tilt  principi  Deo,  qui  omnem  bunc  vt  undum  regit,  quod  quidtm  in  terrt 
fiat  acceptius,  quam  tmsilia  cftusqut  heminum  jure  sociati,  qute  croitates  afipellantur 
Som.   Sip.  cap.  3. 


36  THE  PRINCIPLES  OF 

through  which  the  supreme  authority  flows,  but  is  not  its  real 
source. 

XIV.  The  principal  argument,  which  these  writers  adopt,  is, 
that,  as  neither  each  individual  amongst  a  number  of  free  and 
independent  people,  nor  the  whole  collective  multitude,  are  in 
any  wise  possessed  of  the  supreme  authority,  they  cannot  con- 
fer it  on  the  prince.  But  this  argument  proves  nothing.  It  is 
true,  that  neither  each  member  of  the  society,  nor  the  whole 
multitude  collected,  are  formally  invested  with  the  supreme  au- 
thority, such  as  we  behold  it  in  the  sovereign,  but  it  is  sufficient, 
that  they  possess  it  virtually,  that  is,  that  they  have  within 
themselves  all,  that  is  necessary  to  enable  them,  by  the  con- 
currence of  their  free  will  and  consent,  to  produce  it  in  the 
sovers 

XV.  Since  every  indivdual  has  a  natural  right  of  disposing 
of  his  natural  freedom  according  as  he  thinks  proper,  why 
should  he  not  have  a  power  of  transferring  to  another  that 
right,  which  he  has  of  directing  himself  ?  Now  is  it  not  manifest, 
that,  if  all  the  members  of  this  society  agree  to  transfer  this 
right  to  one  of  their  fellow  members,  this  cession  will  be  the  near- 
est and  immediate  cause  of  sovereignty?  It  is  therefore  evident, 
that  there  are,  in  each  individual,  the  seeds  as  it  were  of  the  su- 
preme power.  The  case  is  here  very  near  the  same,  as  in  that 
of  several  voices,  collected  together,  which  by  their  union  pro- 
duces a  harmony,  that  was  not  to  be  found  separately  in  each. 

XVI.  But  it  will  be  here  objected,  that  the  scripture  itself  says, 
that  every  man  ought  to  be  subject  to  the  supreme  powers,  be- 
cause they  are  established  by  God.*  I  answer  with  Grotius, 
that  men  have  established  civil  societies,  not  in  consequence  of 
a  divine  ordinance,  but  of  their  voluntary  motion,  induced  by  the 
experience  they  had  of  the  incapacity,  which  separate  families 
were  under,  of  defending  themselves  against  the  insults  and  at- 
tacks of  human  violence.  Thence  (he  adds)  arises  the  civil  pow- 
er, which  St.  Petet,  for  this  reason  calls  a  human  power,f 
though  in  other  parts  of  scripture  it  bears  the  name  of  a  divine 

*  Rom.  xia.  f  Ep.  i.  chap.  ii.  ver.13. 


POLITIC  LAW.  37 

institution,*  because  God  has  approved  of  it  as  an  establishment 
useful  to  mankind/}" 

XVII.  The  other  arguments  in  favor  of  the  opinion  we  have 
been  here  refuting  do  not  even  deserve  our  notice.  In  general 
it  may  be  observed,  that  never  were  more  wretched  reasons  pro- 
duced upon  this  subjuct,  as  the  reader  may  be  easily  convinced 
by  reading  Puffendorf  on  the  Law  of  Nature  and  Nations,  who, 
in  the  chapter  corresponding  to  this,  gives  these  arguments  at 
length,  and  fully  refutes  them.  J 

XVIII.  Let  us  therefore  conclude,  that  the  opinion  of  those, 
who  pretend  that  God  is  the  immediate  cause  of  sovereignty, 
has  no  other  foundation,  than  that  of  adulation  and  flattery,  by 
which,  in  order  to  render  the  authority  of  sovereigns  more  ab-^ 
solute,  they  have  attempted  to  render  it  independent  of  all  hu- 
man compact,  and  dependant  only  on  God.  But  were  we  even 
to  grant,  that  princes  hold  their  authority  immediately  of  God, 
yet  the  consequences,  which  some  political  writers  want  to  in- 
fer, could  not  be  drawn  from  this  principle. 

XIX.  For  since  it  is  most  certain,  that  God  could  never  en- 
trust princes  with  this  supreme  authority,  but  for  the  good  of 
society  in  general,  as  well  as  of  individuals,  the  exercise  of  this 
power  must  necessarily  be  limited  by  the  very  intention,  which 
the  Deity  had  in  conferring  it  on  the  sovereign  ;  insomuch  that 
the  people  would  still  have  the  same  right  of  refusing  to  obey 
a  prince,  who,  instead  of  concurring  with  the  views  of  the  Dei- 
ty, would  on  the  contrary  endeavour  to  cross  and  defeat  them, 
by  rendering  his  people  miserable,  as  we  shall  prove  more  par- 
ticularly hereafter. 

*  Rom.  xiii.  i. 

f  Grotius  on  the  Right  of  War  and  Peace,  book  i.  chap.  iv.  §  7,  13.  No.  3, 
See  above,  No.  7,  and  following. 

I  See  the  Law  of  Nature  and  Nations,  book  vii.  chap,  iii. 


3  &  THE  PRINCIPLES  OF 


CHAP.  VII. 

Of  the  eesentil  characters  of  sovereignty  its  modifications ,  extent 
and  limits. 

I.   Of  the  characteristics  of  sovereignty. 

I.  SOVEREIGNTY  we  have  defined,  a  right  of  com- 
manding in  the  last  resort  in  civil  society,  which  right  the  mem- 
bers of  this  society  have  conferred  upon  some  person,  with  a 
view  of  maintaining  order  and  security  in  the  commonwealth. 
This  definition  shews  us  the  principal  characteristics  of  the  pow- 
er, that  governs  the  state,  and  this  is  what  it  will  be  proper  to 
explain  here  in  a  more  particular  manner. 

II.  The  first  characteristic,  and  that,  from  which  all  the  oth- 
ers flow,  is  its  being  a  supreme  and  independent  power,  that  is, 
a  power,  that  judges  in  the  last  resort  of  whatever  is  susceptible 
of  human  direction,  and  relates  to  the  welfare  and  advantage  of 
society  ;  insomuch  that  this  power  acknowledges  no  other  supe- 
rior power  on  earth. 

III.  It  must  be  observed  however,  that,  when  we  say  the 
civil  power  is  of  its  own  nature  supreme  and  independent,  we 
do  not  mean  thereby,  that  it  does  not  depend,  in  regard  to  its 
original,  on  the  human  will.*  All,  that  we  would  have  under- 
stood, is,  that,  when  once  this  power  is  established,  it  acknowl- 
edges no  other  upon  earth  superior  or  equal  to  it,  and  conse- 
quently, that  whatever  it  ordains  in  the  plenitude  of  its  power 
cannot  be  reversed  by  any  other  human  will,  as  superior  to  ir. 

IV.  That  in  every  government  there  should  be  such  a  su- 
preme power  is  a  point  absolutely  necessary  ;  the  very  nature  of 
the  thing  requires  it,  otherwise  it  is  impossible  for  it  to  subsist , 
For,  since  powers  cannot  be  multiplied  to  infinity,  we  must  nec- 
essarily stop  at  some  degree  of  authority  superior  to  all  other. 
And  let  the  form  of  government  be  what  it  will,  monarchical, 
aristocratical,  democratical,  or  mixt,  we  must  always  submit  to 
a  supreme  decision  ;   since  it  implies  a  contradiction  to  say,  that 

*  See  above,  chap.  iv.  &c.  where  we  have  proved  the  contrary. 


POLITIC  LAW.  39 

there  is  any  person  above  him,  who  holds  the  highest  rank  in  the 
same  order  of  beings. 

V.  A  second  characteristic,  which  is  a  consequence  of  the 
former,  is  that  the  sovereign,  as  such,  is  not  accountable  to  any 
person  upon  earth  for  his  conduct,  nor  liable  to  any  punishment 
from  man  ;  for  both  suppose  a  superior. 

VI.  There  are  two  ways  of  being  accountable. 

One  as  to  a  superior,  who  has  a  right  of  reversing  what  ha3 
been  done,  if  he  does  not  find  it  to  his  liking,  and  even  of  in- 
flicting some  punishment,  and  tins  is  inconsistent  with  the  idea 
of  a  sovereign. 

The  other  as  to  an  equal,  whose  approbation  we  are  desir- 
ous of  having  ;  and  in  this  sense  a  sovereign  may  be  accounta- 
ble, without  any  absurdity.  And  even  they,  who  have  a  right  idea 
of  honour,  endeavour  by  such  means  to  acquire  the  approba- 
tion and  esteem  of  mankind,  by  letting  all  the  world  see,  that 
they  act  with  prudence  and  integrity.  But  this  does  not  im- 
ply any  dependance. 

VII.  I  said  that  the  sovereign,  as  such,  was  neither  account- 
able nor  punishable  •,  that  is,  so  long  as  he  continues  really  a 
sovereign,  and  has  not  for  feited  his  right.  For  it  is  past  all  doubt, 
that  if  the  sovereign,  utterly  forgetful  of  the  end,  for  which  he 
was  entrusted  with  the  sovereignty,  applied  it  to  a  quite  contrary 
purpose,  and  thus  became  an  enemy  to  the  state  ;  the  sovereignty 
returns  (ipso  facto)  to  the  nation,  who,  in  that  case,  can  act  to- 
wards the  person,  who  was  their  sovereign,  in  the  manner  they 
think  most  agreeable  to  their  security  and  interests.  For,  what- 
ever notion  we  may  entertain  of  sovereignty,  no  man  in  his 
senses  will  pretend  to  say,  that  it  is  an  undoubted  title  to  fol- 
low the  impulse  of  our  irregular  passions  with  impunity,  and 
thus  to  become  an  enemy  to  society.  * 

VIII.  A  third  characteristic  essential  to  sovereignty  consid- 
ered in  itself,  is  that  the  sovereign,  as  such,  be  above  all  hu- 
man or  civil  law.  I  say,  all  human  law  j  for  there  is  no 
doubt  but  the  sovereign  is  subject  to  the  divine  laws, whether 
natural  or  positive. 


4©  THE  PRINCIPLES  OF 

Regum  timendorum  in  proprlos  greges, 
Reges  in  ipsos  imperium  est  jfovis. 

Hor.  lib.  3.  Oil.  U 

IX.  But  with  regrard  to  laws  merely  human,  as  their  whole 
force  and  obligation  ultimately  depends  on  the  will  of  the 
sovereign,  they  cannot,  with  any  propriety  of  speech,  be  said 
to  be  obligatory  in  respect  to  him  ;  for  obligation  necessarily 
supposeth  two  persons,  a  superior  and  an  inferior. 

X.  And  yet  natural  equity  requires  sometimes,  that  the 
prince  should  conform  to  his  own  laws,  to  the  end,  that  his 
subjects  may  be  more  effectually  induced  to  observe  them. 
This  is  extremely  well  expressed  in  these  verses  of  Claudian.* 

In  commune  jubesy  si  quid,  cinsesve  tenendum , 
Primus  jussa  subi  ;   tunc  observantior  aqui 
Fit  populus,  nee  f err e  negat,  cum  viderit  ipsum 
Auctorem  parere  sibi  ;   componitur  orbis 
Regis  ad  exemplum  nee  sic  itrflectere  sensus 
Humanos  edict  a  valent*  ut  vita  re  rent  is. 

Would  you  your  public  laws  should  sacred  stand, 
Lead  first  the  way,  and  act  what  you  command. 
The  crowd  grow  mild  and  tractable  to  see 
The  author  governed  by  his  own  decree. 
The  world  turns  round,  as  its  great  matter  draws, 
And  princes  lives  bind  stronger  than  their  laws. 

XI.  To  proceed,  in  treating  here  of  sovereignty,  we  sup- 
pose that  it  is  really  and  absolutely  such  in  its  own  nature,  and 
that  the  establishment  of  civil  laws  ultimately  depends  on  the 
sole  will  of  the  person,  who  enjoys  the  honours  and  title  of 
sovereign,  insomuch,  that  his  authority,  in  this  respect,  cannot 
be  limited  •,  otherwise  this  superiority  of  the  prince  above  the 
laws  is  not  applicable  to  him  in  the  full  extent,  in  which  we 
have  given  it  him. 

XII.  This  sovereignty,  such  as  we  have  now  represented  it, 

*  De  IV.  Consul  Honor,  ver.  296,  et  seq. 


POLITIC  LAW,  4i 

resided  originally  in  the  people.  But  when  once  the  people 
have  transferred  their  right  to  a  sovereign,  they  cannot,  with- 
out contradiction,  be  supposed  to  continue  still    masters  of  it. 

XIII.  Hence  the  distinction,  which  some  political  writers 
make,  between  real  sovereignty,  which  always  resides  in  the  peo- 
ple, and  actual  sovereignty,  which  belongs  to  the  king,  is  equal- 
ly absurd  and  dangerous.  For  it  is  ridiculous  to  pretend,  that 
after  the  people  have  conferred  the  supreme  authority  on  the 
king,  they  should  still  continue  in  possession  of  that  very  au- 
thority superior  to  the  king  himself. 

XIV.  We  must  therefore  observe  here  a  just  medium,  and 
establish  principles,  that  neither  favor  tyranny,  nor  the  spirit 
of  mutiny  and  rebellion. 

i .  It  is  certain  that,  so  soon  as  the  people  submit  to  a  kingj 
really  such,  they  have  no  longer  the  supreme  power. 

2.  But  it  does  not  follow,  from  the  people's  having  confer- 
red the  supreme  power  in  such  a  manner,  that  they  have  reserv- 
ed to  themselves  in  no  case  the  right  of  resuming  it. 

3.  This  reservation  is  sometimes  explicit;  but  there  is  al- 
ways a  tacit  one,  the  effect  of  which  discloses  itself,  when  the 
person,  intrusted  with  the  supreme  authority,  perverts  it  to  an 
use  directly  contrary  to  the  end,  for  which  it  was  conferred 
upon  him,  as  will  better  appear  hereafter* 

XV.  But  though  it  be  absolutely  necessary,  that  there  should 
be  a  supreme  and  independent  authority  in  the  state,  there  is 
nevertheless  some  difference,  especially  in  monarchies  and  aris- 
tocracies, with  regard  to  the  manner,  in  which  those,  who  are  in- 
trusted with  this  power,  exercise  it.  In  some  states  the  prince 
governs  as  he  thinks  proper ;  in  others  he  is  obliged  to  follow 
some  fixt  and  constant  rules,  from  which  he  is  not  allowed  to  de- 
viate ;  this  is  what  I  call  the  modifications  of  sovereignty,  and 
hence  arises  the  distinction  of  absolute  and  limited  sovereignty. 

2.    Of  absolute  sovereignty* 

XVI.  Absolute  sovereignty  is  therefore  nothing  else,  but  the 
right  of  governing  the  state  as  the  prince  thinks  proper,  accord- 
iiig  as  the  present  situation  of  affairs  seems  to  require,  and  with- 

F 


42  THE  PRINCIPLES  OF 

out  being  obliged  to  consult  any  person  whatever,  or  to  follow 
any  fixt  and  perpetual  rules. 

XVII.  Upon  this  head  we  have  several  important  reflections 
to  make. 

i .  The  word  absolute  power  is  generally  very  odious  to  repub- 
licans j  and  I  must  confess,  that  when  it  is  misunderstood,  it  is 
apt  to  make  the  most  dangerous  impression  on  the  minds  of 
princes,  especially  in  the  mouths  of  flatterers. 

2.  In  order  to  form  a  just  idea  of  it,  we  must  trace  it  to  its 
principle.  In  the  state  of  nature  every  man  has  an  absolute 
right  to  act  after  what  manner  he  thinks  most  conducive  to  his 
happiness,  and  without  being  obliged  to  consult  any  person 
whatever,  provided  however  he  does  nothing  contrary  to  the  laws 
of  nature.  Consequently  when  a  multitude  of  men  unite  to- 
gether, in  order  to  form  a  state,  this  body  hath  the  same  liberty  in 
regard  to  matters,  in  which  the  public  good  is  concerned. 

3.  When  therefore  the  whole  body  of  the  people  confer  the 
sovereignty  upon  a  prince,  with  this  extent  and  absolute  power, 
which  originally  resided  in  themselves,  and  without  adding  any 
particular  limitation  to  it,  we  call  that  sovereignty  absolute. 

4.  Things  being  thus  constituted,  we  must  not  confound  an 
absolute  power  with  an  arbitrary,  despotic,  and  unlimited  au- 
thority. For,  from  what  we  have  here  advanced  concerning 
the  Original  and  nature  of  absolute  sovereignty,  it  manifestly 
follows,  that  it  is  limited,  from  its  very  nature,  by  the  inten- 
tion of  those,  who  conferred  it  on  the  sovereign,  and  by  the 
very  laws  of  God.  This  is  what  we  must  explain  more  at 
large. 

XVIII.  The  end,  which  mankind  proposed  to  themselves  in 
renouncing  their  natural  independence,  and  establishing  govern- 
ment and  sovereignty,  was  doubtless  to  redress  the  evils,  which 
they  labored  under,  and  to  secure  their  happiness.  If  so,  how 
is  it  possible  to  conceive,  that  those,  who  with  this  view  grant- 
ed an  absolute  power  to  the  sovereign,  should  have  intended  to 
give  him  an  arbitrary  and  unlimited  authority,  so  as  to  intitle 
him  to  gratify  his  caprice  and  passions  to  the  prejudice  of  the 
life,  property,  and  liberty  of  the  subject  ?  On  the  contrary  we 
have  shown  above,  that  the  civil  state  must  necessarily  ernpow- 


POLITIC  LAW.  43 

er  the  subjects  to  insist  upon  the  sovereign's  using  his  authority 
for  their  advantage,  and  according  to  the  purposes,  for  which  he 
was  intrusted  with  it. 

XIX.  It  must  therefore  be  acknowledged,  that  it  never  was 
the  intention  of  the  people  to  confer  absolute  sovereignty  upon 
a  prince,  but  with  this  express  condition,  that  the  public  good 
should  be  the  supreme  law  to  direct  him  ;  consequently  so  long, 
as  the  prince  acts  with  this  view,  he  is  authorised  by  the  peo- 
ple ;  but,  on  the  contrary, 'if  he  makes  use  of  his  power  merely 
to  ruin  and  destroy  his  subjects,  he  acts  intirely  of  his  own  head, 
and  not  in  virtue  of  the  power,  with  which  he  was  intrusted 
by  the  people. 

XX.  Still  further,  the  very  nature  of  the  thing  does  not  al- 
low absolute  power  to  be  extended  beyond  the  bounds  of  pub- 
lic utility  ;  for  absolute  sovereignty  cannot  confer  a  right  upon 
the  sovereign,  which  the  people  had  not  originally  in  themselves. 
Now  before  the  establishment  of  civil  society,  surely  no  man 
had  a  power  of  injuring  either  himself  or  others  ;  consequently 
absolute  power  cannot  give  the  sovereign  a  right  to  hurt  and  a- 
buse  his  subjects. 

XXI.  In  the  state  of  nature  every  man  was  absolute  master 
of  his  own  person  and  actions,  provided  he  confined  himself 
within  the  limits  cf  the  law  of  nature.  Absolute  power  is 
formed  only  by  the  union  of  all  the  rights  of  individuals  in  the 
person  of  the  sovereign ;  of  course  the  absolute  power  of  the 
sovereign  is  confined  within  the  same  bounds,  as  those,  bv 
which  the  absolute  power  of  individuals  was  originally  limited. 

XXII.  But  I  go  still  further  and  affirm,  that,  supposing  even 
a  nation  had  been  really  willing  to  grant  their  sovereign  an  ar- 
bitrary and  unlimited  power,  this  concession  would  of  itself  be 
void  and  of  no  effect. 

XXIII.  No  man  can  divest  himself  so  far  of  his  liberty,  as  to 
submit  to  an  arbitrary  prince,  who  is  to  treat  him  absolutely  ac- 
cording to  his  fancy.  This  would  be  renouncing  his  own  life, 
which  he  is  not  master  of;  it  would  be  renouncing  his  duty, 
which  is  never  permitted ;  and  if  thus  it  be  with  regard  to  an 
individual,  who  should  make  himself  a  slave,  much  less  hath  an 
entire  nation  that  power,  which  is  not  to  be  found  in  any  of  its 
members. 


44  THE  PRINCIPLES  OF 

XXIV.  By  this  it  appears  most  evident,  that  all  sovereignty, 
how  absolute  soever  we  suppose  it,,  hath  its  limits ;  and  that  it 
can  never  imply  an  arbitrary  power  in  the  prince  of  doing  what- 
ever he  pleases,  without  any  other  rule  or  reason  than  his  own 
despotic  will. 

XXV.  For  how  indeed  should  we  attribute  any  such  power 
to  the  creature,  when  it  is  not  to  be  found  in  the  supreme  Being 
himself  ?  His  absolute  dominion  is  not  founded  on  a  blind  will ; 
his  sovereign  will  is  always  determined  by  the  immutable  rules 
of  wisdom,  justice,  and  beneficence. 

XXVI.  In  short  the  right  of  commanding,  or  sovereignty, 
ought  always  to  be  established  ultimately  on  a  power  of  doing 
good,  otherwise  it  cannot  be  productive  of  a  real  obligation  j 
for  reason  cannot  approve  or  submit  to  it ;  and  this  is  what  distin-» 
guishes  empire  and  sovereignty  from  violence  and  tyranny. 
Such  are  the  ideas  we  ought  to  form  of  absolute  sovereignty. 

3.    Of  limited  sovereignty. 

XXVII.  But  although  absolute  power,  considered  in  itselfj 
and  such  as  we  have  now  represented  it,  implies  nothing  odious 
or  unlawful,  and  in  that  sense  people  may  confer  it  upon  the 
sovereign  ;  yet  we  must  allow,  that  the  experience  of  all  ages 
has  informed  mankind,  that  this  is  not  the  form  of  government, 
which  suits  them  best,  nor  the  fittest  for  procuring  them  a  state 
of  tranquillity  and  happiness. 

XXVIII.  Whatever  distance  there  may  be  between  the  sub- 
jects and  the  sovereign,  in  whatsoever  degree  of  elevation  the 
latter  may  be  placed  above  the  rest,  still  he  is  a  human  creature 
like  themselves ;  their  souls  are  all  cast  as  it  were  in  the  same 
mould,  they  are  all  subject  to  the  same  prejudices,  and  suscepti- 
ble of  the  same  passions. 

XXIX.  Again,  the  very  station,  which  sovereigns  occupy,  ex- 
poses them  to  temptations,  unknown  to  private  people.  The 
generality  of  princes  have  neither  virtue  nor  courage  sufficient 
to  moderate  their  passions,  when  they  find  they  may  do  what- 
ever they  list.  The  people  have  therefore  great  reason  to  fear, 
that  an  unlimited  authority  will  turn  out  to  their  prejudice,  and 


POLITIC  LAW.  45 

that  it'  they  do  not  reserve  some  security  to  themselves,  against 
the  sovereign's  abusing  it,  he  will  some  time  or  other  abuse  it. 

XXX.  It  is  these  reflections,  justified  by  experience,  that 
have  induced  most,  and  those  the  wisest  nations  to  set  bounds 
to  the  power  of  their  sovereigns,  and  to  prescribe  the  manner 
in  which  the  latter  are  to  govern ;  and  this  has  produced  what 
is  called  limited  sovereignty. 

XXXI.  But,  though  this  limitation  of  the  supreme  power 
be  advantageous  to  the  people,  it  does  no  injury  to  the  princes 
themselves  ;  nay  it  may  rather  be  said,  it  turns  out  to  their  ad- 
vantage, and  forms  the  greatest  security  to  their  authority. 

XXXII.  It  does  no  injury  to  princes  ;  for,  if  they  could 
not  be  satisfied  with  a  limited  authority,  their  business  was  to 
refuse  the  crown ;  and  when  once  they  have  accepted  of  it 
upon  these  conditions  they  are  no  longer  at  liberty  to  endeavor 
afterwards  to  break  through  them,  or  to  strive  to  render  them- 
selves absolute. 

XXXIII.  It  is  rather  advantageous  to  princes,  because  those, 
who  are  invested  with  absolute  power,  and  are  desirous  of  dis- 
charging their  duty,  are  obliged  to  a  far  greater  vigilance  and 
circumspection,  and  exposed  to  more  fatigue,  than  those,  who 
have  their  task  as  it  were  marked  out  to  them,  and  are  not  al- 
lowed to  deviate  from  certain  rules. 

XXXIV.  In  fine  this  limitation  of  sovereignty  forms  the 
greatest  security  to  the  authority  of  princes ;  for,  as  they  are 
less  exposed  hereby  to  temptation,  they  avoid  that  popular  fury, 
which  is  sometimes  discharged  on  those,  who,  having  been  in- 
vested with  absolute  authority,  abuse  it  to  the  public  prejudice. 
Absolute  power  easily  degenerates  into  despotism,  and  despotism 
paves  the  way  for  the  greatest  and  most  fatal  resolutions,  that 
can  happen  to  sovereigns.  This  is  what  the  experience  of  all 
ages  has  verified.  It  is  therefore  a  happy  incapacity  in  kings 
not  to  be  able  to  act  contrary  to  the  laws  of  their  country. 

XXXV.  Let  us  therefore  conclude,  that  it  entirely  depends 
upon  a  free  people,  to  invest  the  sovereigns,  whom  they  place 
over  their  heads,  with  an  authority  either  absolute,  or  limited 
by  certain  laws,  provided  these  laws  contain  nothing  contrary  to 
justice,  nor  to  the  end  of  government.     These  regulations,  by 


46  THE  PRINCIPLES  OF 

which  the  supreme  authority  is  kept  within  bounds,  are  called 
the  fundamental  laws  of  the  state. 

4.   Of  fundamental  laws. 

XXXVI.  The  fundamental  laws  of  a  state,  taken  in  their 
full  extent,  are  not  only  the  decrees,  by  which  the  entire  body  of 
the  nation  determine  the  form  of  government,  and  the  manner 
of  succeeding  to  the  crown  •,  but  are  likewise  the  covenants  be- 
twixt the  people  and  the  person,  on  whom  they  confer  the  sove- 
reignty, which  regulate  the  manner  of  governing,  and  by  which 
the  supreme  authority  is  limited. 

XXXVII.  These  regulations  are  called  fundamental  laws,  be- 
cause they  are  the  basis  as  it  were,  and  foundation  of  the  state, 
on  which  the  structure  of  the  government  is  raised,  and  because 
the  people  look  upon  those  regulations,  as  their  principal  strength 
and  support. 

XXXVIII.  The  name  of  laws  however  has  been  given  to 
these  regulations  in  an  improper  and  figurative  sense  ;  for,  prop- 
erly speaking,  they  are  real  covenants.  But,  as  those  covenants 
are  obligatory  between  the  contracting  parties,  they  have  the 
force  of  laws  themselves.      Let  us  explain  this  more  at  large. 

XXXIX.  1 .  I  observe  in  the  first  place,  that  there  is  a  kind 
of  fundamental  law  essential  to  all  governments,  even  in  those 
states,  where  the  most  absolute  sovereignty  prevails.  This  law 
is  that  of  the  public  good,  from  which  the  sovereign  can  never 
depart,  without  being  wanting  in  his  duty ;  but  this  alone  is  not 
sufficient  to  limit  the  sovereignty. 

XL.  Hence  those  pi-omises  either  tacit  or  express,  by  which 
princes  bind  themselves  even  by  oath,  when  they  come  to  the 
crown,  of  governing  according  to  the  laws  of  justice  and  equi- 
ty, of  consulting  the  public  good,  of  oppressing  no  man,  of  pro- 
tecting the  virtuous,  and  of  punishing  evil  doers,  and  the  like, 
do  not  imply  any  limitation  to  their  authority,  nor  any  diminu- 
tion of  their  absolute  power.  It  is  sufficient,  that  the  choice 
of  the  means  for  procuring  the  advantage  of  the  state,  and  the 
method  of  putting  them  in  practice,  be  left  to  the  judgment 
and  disposal  of  the  sovereign  ;  otherwise  the  distinction  of  ab- 
solute and  limited  power  would  be  utterly  abolished. 


POLITIC  LAW.  47 

XLI.  2.  But  with  regard  to  fundamental  laws,  properly  so 
called,  they  are  only  more  particular  precautions,  taken  by  the 
people,  to  oblige  sovereigns  more  strongly  to  employ  their  au- 
thority, agreeably  to  the  general  rule  of  the  public  good.  This 
may  be  done  several  ways  ;  but  still  these  limitations  of  the 
sovereignty  have  more  or  less  force,  according  as  the  nation  has 
taken  more  or  less  precautions,  that  they  shall  have  their  due  ef- 
fect. 

XLII.  Hence,  r.  a  nation  may  require  of  a  sovereign,  that 
he  will  engage,  by  a  particular  promise,  not  to  make  any  new 
laws,  nor  to  levy  new  imposts,  to  tax  only  some  particular  things, 
to  give  places  and  employments  only  to  a  certain  set  of  people, 
and  not  to  take  any  foreign  troops  into  his  pay,  &c.  Then  in- 
deed the  supreme  authority  is  limited  in  those  different  respects, 
insomuch  that  whatever  the  king  attempts  afterwards,  contrary 
to  the  formal  engagement  he  entered  into,  shall  be  void  and  of 
no  effect.  But  if  there  should  happen  to  be  an  extraordinary 
case,  in  which  the  sovereign  thought  it  conducive  to  the  public 
good  to  deviate  from  the  fundamental  laws,  he  is  not  allowed 
to  do  it  of  his  own  head,  in  contempt  of  his  solemn  engage- 
ment ;  but  in  that  case  he  ought  to  consult  the  people  them- 
selves or  their  representatives.  Otherwise,  under  pretence  of 
some  necessity  or  utility,  the  sovereign  might  easily  break  his 
word,  and  frustrate  the  effect  of  the  precautions,  taken  by  the 
nation  to  limit  his  power.  And  yet  Puffendorf  thinks  other- 
wise.* But,  for  a  still  greater  security  of  the  performance  of 
the  engagements,  into  which  the  sovereign  entered,  and  which 
limit  his  power,  it  is  proper  to  require  explicitly  of  him,  that  he 
shall  convene  a  general  assembly  of  the  people,  or  of  their  rep- 
resentatives, or  of  the  nobility  of  the  country,  when  any  mat- 
ters happen  to  fall  under  debate,  which  it  was  thought  improp- 
er to  leave  to  his  decision.  Or  else  the  nation  may  previously 
establish  a  council,  a  senate,  or  a  parliament,  without  whose 
consent  the  prince  shall  be  rendered  incapable  of  acting  in  re- 
gard to  things,  which  the  nation  did  not  think  fit  to  submit  to 
his  will. 

XLIII.   2.  History  informs  us,  that  some  nations  have  carri- 
*  See  the  Law  of  Nature  and  Nations,  book  vii.  chap,  vusect.  10, 


48  THE  PRINCIPLES  OF 

ed  their  precautions  still  further,  by  inserting  in  plain  terms,  in 
their  fundamental  laws,  a  condition  or  clause,  by  which  the 
king  was  declared  to  have  forfeited  his  crown,  if  he  broke 
through  those  laws.  Puffendorf  gives  an  example  of  this,  tak- 
en from  the  oath  of  allegiance,  which  the  people  of  Aragon 
formerly  made  to  their  kings.  We,  who  have  as  much  power  as 
you,  make  you  our  king,  upon  condition,  that  you  maintain  inviolably 
our  rights  and  liberties,  and  not  otherwise. 

XJLIV.  It  is  by  such  precautions  as  these,  that  a  nation  real- 
ly limits  the  authority,  she  confers  on  the  sovereign,  and  se- 
cures her  liberty.  For,  as  we  have  already  observed,  civil  lib- 
erty ought  to  be  accompanied  not  only  with  a  right  of  insisting 
on  the  sovereign's  making  a  due  use  of  his  authority,  but  more- 
over with  a  moral  certainty,  that  this  right  shall  have  its  effect. 
And  the  only  way  to  render  the  people  thus  certain  is  to  use 
proper  precautions  against  the  abuse  of  the  sovereign  power, 
and  in  such  a  manner,  that  these  precautions  cannot  be  easily 
eluded. 

XLV.  Besides,  we  must  observe,  that  these  limitations  of 
the  sovereign  power  do  not  render  it  defective,  nor  make  any 
diminution  in  the  supreme  authority ;  for  a  prince,  or  a  senate, 
who  has  been  invested  with  the  supreme  power  upon  this  foot- 
ing, may  exercise  every  act  of  it  as  well,  as  in  an  absolute  mon- 
archy. All  the  difference  is,  that  in  the  latter  the  prince  alone 
determines  ultimately  according  to  his  private  judgment  ;  but, 
in  a  limited  monarchy,  there  is  a  certain  assembly,  who,  in  con- 
junction with  the  king,  take  cognizance  of  particular  affairs,  and 
whose  consent  is  a  necessary  coadition,  without  which  the  king 
can  determine  nothing.  But  the  wisdom  and  virtue  of  good 
sovereigns  are  strengthened  by  the  concurring  assistance  of  those, 
who  have  a  share  in  the  authority.  Princes  always  do  what 
they  incline  to,  when  they  incline  to  nothing  but  what  is  just 
and  good  ;  and  they  ought  to  esteem  themselves  happy  in  hav- 
ing it  put  out  of  their  power  to  act  otherwise. 

XL VI.  3.  In  a  word,  as  the  fundamental  laws,  which  limit 
the  sovereign  authority,  are  nothing  else  but  the  means,  which 
the  people  use  to  assure  themselves,  that  the  prince  will  not  re- 
cede from  the  general  law  of  the  public  good  in  the  most  inv 


POLITIC  LAW. 


49 


portant  conjunctures,  it  cannot  be  said,  that  they  render  the 
sovereignty  imperfect  or  defective.  For,  if  we  suppose  a  prince 
invested  with  absolute  authority,  but  at  the  same  time  blessed 
with  so  much  wisdom  and  virtue,  that  he  will  never,  even  in 
the  most  trifling  case,  deviate  from  the  laws,  which  the  public 
good  requires,  and  that  all  his  determinations  shall  be  subjected 
to  this  superior  rule,  can  we,  for  that  reason,  say,  that  his  pow- 
er is  in  the  least  weakened  or  diminished  ?  No  certainly  ;  for 
the  precautions,  which  the  people  take  against  the  weakness  or 
the  wickedness  inseparable  from  human  nature  in  limiting  the 
power  of  their  sovereigns,  to  hinder  them  from  abusing  it,  do  not 
in  the  least  weaken  or  diminish  the  sovereignty  ;  but,  on  the 
contrary,  they  render  it  more  perfect,  by  reducing  the  sove- 
reign to  a  necessity  of  doing  good,  and  consequently  by  put- 
ting him  as  it  were  out  of  a  capacity  of  misbehaving. 

XL VII.  Neither  are  we  to  believe,  that  there  are  two  dis- 
tinct wills  in  a  state,  whose  sovereignty  is  limited  in  the  man- 
ner we  have  explained ;  for  the  state  wills  or  determines  noth- 
ing but  by  the  will  of  the  king.  Only  it  is  to  be  observed,  that, 
when  a  condition  stipulated  happens  to  be  broken,  the  king 
cannot  decree  at  all,  or  at  least  he  must  do  so  in  vain  in 
certain  points  ;  but  he  is  not,  for  this  reason,  less  a  sovereign, 
than  he  was  before.  Because  a  prince  cannot  do  every  thing 
according  to  his  humour,  it  does  not  follow  that  he  is  not  the 
sovereign.  Sovereign  and  absolute  power  ought  not  to  be 
confounded ;  and,  from  what  has  been  said,  it  is  evident,  that 
the  one  may  subsist  without  the  other. 

XLVIII.  4.  Lastly,  there  is  still  another  manner  of  limit- 
ing the  authority  of  those,  to  whom  the  sovereignty  is  com- 
mitted ;  which  is,  not  to  trust  all  the  different  rights,  included 
in  the  sovereignty,  to  one  single  person  ;  but  to  lodge  them  in 
separate  hands,  or  in  different  bodies ;  that  they  may  modify 
or  restrain  the  sovereignty. 

XLIX.  For  example,  if  we  suppose,  that  the  body  of  the  na- 
tion reserves  to  itself  the  legislative  power,  and  that  of  creating 
the  principal  magistrates  ;  that  it  gives  the  king  the  military 
and  executive  powers,  &c.  and  that  it  trusts  to  a  senate,  com- 
posed of  the  principal  men,  the  judiciary  power,  that  of  lay- 
ing taxes,  &c.  it  is  easily  conceived,  that  this  may  be  execut- 

G 


50  THE  PRINCIPLES  OF 

ed  in  different  manners,  in  the  choice  of  which  prudence  must 
determine  us. 

L.  If  the  government  is  established  on  this  footing,  then, 
by  the  original  compact  of  association,  there  is  a  kind  of  par- 
tition in  the  rights  of  the  sovereignty,  by  a  reciprocal  contract 
or  stipulation  between  the  different  bodies  of  the  state.  This 
partition  produces  a  balance  of  power,  which  places  the  dif- 
ferent bodies  of  the  state  in  such  a  mutual  dependance,  as  re- 
tains every  one,  who  has  a  share  „  in  the  sovereign  authority, 
within  the  bounds,  which  the  law  prescribes  to  them  ;  by  which 
means  the  public  liberty  is  secured.  For  example,  the  regal  au- 
thority is  balanced  by  the  power  of  the  people,  and  a  third 
order  serves  as  a  counterbalance  to  the  two  former  to  keep 
them  always  in  an  equilibrium,  and  hinder  the  one  from  sub- 
verting the  other.  And  this  is  sufficient,  concerning  the  distinc- 
tion between  absolute  and  limited  sovereignty. 

5"    Of  patrimonial  and  usufructuary  kingdoms. 

Li.  In  order  to  finish  this  chapter,  let  us  observe,  that  there 
is  still  another  accidental  difference  in  the  manner  of  posses- 
sing the  sovereignty,  especially  with  respect  to  kings.  Some 
are  masters  of  their  crown  in  the  way  of  patrimony,  which  they 
are  permitted  to  share,  transfer,  or  alienate  to  whom  they  have 
a  mind  ;  in  a  word,  of  which  they  can  dispose,  as  they  think 
proper  ;  others  hold  the  sovereignty  in  the  way  of  use  only, 
not  of  property  j  and  this  either  for  themsdves  only,  or  with 
the  power  of  transmitting  it  to  their  descendants  according  to 
the  laws,  established  for  the  succession.  It  is  upon  this  foun- 
dation, that  the  learned  distinguish  kingdoms  into  patrimonial, 
and  usufructuary  or  not  patrimonial. 

LII.  We  shall  here  add,  that  those  kings  possess  the  crown , 
in  full  property,  who  have  acquired  the  sovereignty  by  right  of 
conquest ;  or  those,  to  whom  a  people  have  delivered  them- 
selves up  without  reserve,  in  order  to  avoid  a  greater  evil  ;  but 
that,  on  the  contrary,  those  kings,  who  have  been  established 
by  a  free  consent  of  the  people,  possess  the  crown  in  the  way 
of  use  only.      This  is  the  manner,  in  which   Grotius  explains 


POLITIC  LAW.  5 1 

this  distinction,  in  which  he  has  been  followed  by  Fuffendorf, 
and  by  most  of  the  other  commentators  or  writers.* 

LIII.  On  this  we  may  make  the  following  remarks. 

i.  There  is  no  reason  to  hinder  the  sovereign  power,  as  well 
as  every  other  right,  from  being  alienated  or  transferred.  In  this 
there  is  nothing  contrary  to  the  nature  of  the  thing  •,  and,  if  the 
agreement  between  the  prince  and  the  people  bears,  that  the 
prince  shall  have  full  right  to  dispose  of  the  crown,  as  he  shall 
think  proper,  this  will  be  what  we  call  a  patrimonial  kingdom. 

2.  But  examples  of  such  agreements  are  very  rare  ;  and  we 
hardly  find  any  other  except  that  of  the  Egyptians  with  their 
king,  mentioned  in  Genesis.f 

3.  The  sovereign  power,  however  absolute,  is  not  of  itself 
invested  with  the  right  of  property,  nor  consequently  with  the 
power  of  alienation.  These  two  ideas  are  intirely  distinct,  and 
have  no  necessary  connexion  with  each  other. 

4.  It  is  true,  some  alledge  a  great  many  examples  of  alien- 
ations, made  in  all  ages  by  sovereigns  ;  but  either  those  aliens 
ations  had  no  effect ;  or  they  were  made  with  an  express  or 
tacit  consent  of  the  people  j  or  lastly  they  were  founded  on  no 
other  title,  than  that  of  force. 

5.  Let  us  therefore  take  it  for  an  incontestible  principle, 
that,  in  dubious  cases,  every  kingdom  ought  to  be  judged  not 
patrimonial,  so  long  as  it  cannot  be  proved,  that  a  people  sub- 
mitted themselves  on  that  footing  to  a  sovereign, 

CHAP.  VIII. 

Of  the  parts   'of  sovereignty  y    or  of  the  different  essential  rightsi 
which  it  includes. 

I.  IN  order  to  finish  this  first  part  nothing  remains,  but  to 
treat  of  the  different  parts  of  sovereignty.  We  may  consider 
sovereignty  as  an  assemblage  of  various  rights  and  different 
powers,  which,  though  distinct,  are  nevertheless  conferred  for 
the  same  end  y  that  is  to  say,  for  the  good  of  the  society,  and 

*   See  Grotius  on  the  right  of  war  and  peace,  lib.  i.  chap.  iii.  sect.  11  and  li 
$cc.    Puffendorf  on  the  law^of  nature  and  nations,  lib.  vii.  chap.vi.  sect.  14,  J.< 
I  Chap.xlvii.  ver,  18,  &c.. 


$2  THE  PRINCIPLES  OF 

which  are  all  essentially  necessary  for  this  same  end.  These 
different  rights  and  powers  are  called  the  essential  parts  of  sove- 
reignty. 

II.  To  he  convinced,  that  these  are  the  parts  of  sovereign- 
ty, we  need  only  attend  to  its  nature  and  end. 

The  end  of  sovereignty  is  the  preservation,  the  tranquillity, 
and  the  happiness  of  the  state,  as  well  within  itself,  as  with  res- 
pect to  its  interests  abroad  i  so  that  sovereignty  must  include 
every  thing,  that  is  essentially  necessary  for  procuring  this^two- 
fold  end. 

III.  i.  As  this  is  the  case,  the  first  part  of  sovereignty,  and 
that,  which  is,  as  it  were,  the  foundation  of  all  the  rest,  is  the 
legislative  power,  by  virtue  of  which  the  sovereign  establishes 
general  and  perpetual  rules,  which  are  called  laws.  By  these 
means  every  one  knows  how  he  ought  to  conduct  himself  for 
the  preservation  of  peace  and  good  order,  what  share  he  retains 
of  his  natural  liberty,  and  how  he  ought  to  exert  his  rights,  so 
as  not  to  disturb  the  public  tranquillity. 

It  is  by  means  of  laws,  that  we  contrive  so  nobly  to  unite 
the  prodigious  diversity  of  sentiments  and  inclinations,  observa- 
ble among  men,  and  establish  that  concert  and  harmony  so  es- 
sential to  society,  since  they  direct  the  different  actions  of  indi- 
viduals to  the  general  good  and  advantage.  But  it  must  be  sup- 
posed, that  the  laws  of  the  sovereign  contain  nothing  opposite 
to  the  divine  laws,  whether  natural  or  revealed. 

IV.  2.  To  the  legislative  we  must  join  the  coercive  power, 
that  is  to  say,  the  right  of  ordaining  punishments  against  those, 
who  molest  the  community  by  their  irregularities,  and  the  pow- 
er of  actually  inflicting  them.  Without  this  power  the  estab- 
lishment of  civil  society  and  of  laws  would  be  absolutely  use- 
less, and  we  could  not  propose  to  live  in  peace  and  safety.  But, 
that  the  dread  of  punishments  may  make  a  sufficient  impression 
on  the  minds  of  the  people,  the  right  of  punishing  must  extend 
to  the  power  of  inflicting  the  greatest  of  natural  evils,  which 
Is  death  -,  otherwise  the  dread  of  punishment  would  not  be  al- 
ways capable  of  counterbalancing  the  force  of  pleasure,  and  the 
impulse  of  passion.  In  a  word  the  subjects  must  have  a  strong- 
er interest  to  observe,  than  to  violate  the  law.     Thus  the  vin- 


POLITIC  LAW,  53 

dictive  power  is  certainly  the  highest  degree  of  authority,  which 
one  man  can  hold  over  another. 

V.  3.  Further  it  is  necessary  for  the  preservation  of  peace, 
that  the  sovereign  should  have  a  right  to  take  cognizance  of  the 
different  quarrels  between  the  subjects,  and  to  decide  them  in 
the  last  resort ;  as  also  to  examine  the  accusations,  laid  against 
any  person,  in  order  to  absolve  or  punish  him  by  his  sentence, 
conformably  to  the  laws ;  this  is  what  we  Cd\\  jurisdiction,  or  the 
judiciary  power.  To  this  we  must  also  refer  the  right  of  par- 
doning criminals,  when  the  public  utility  requires  it. 

VI.  4.  Besides,  as  the  ways  of  thinking,  or  opinions,  em- 
braced by  the  subject,  may  have  a  very  great  influence  on  the 
welfare  of  the  commonwealth,  it  is  necessary  that  sovereignty 
should  include  a  right  of  examining  the  doctrines,  taught  in 
the  state ;  so  that  nothing  may  be  publicly  advanced, 
but  what  is  conformable  to  truth,  and  conducive  to  the 
advantage  of  society.  Hence  it  is,  that  it  belongs  to  the 
sovereign  to  establish  professors,  academies,  and  public  schools  ; 
and  the  supreme  power,  in  matters  of  religion,  is  as  much  his 
right,  as  the  nature  of  the  thing  will  permit.  After  having  se- 
cured the  public  repose  at  home,  it  is  necessary  to  guard  the 
people  against  strangers,  and  to  procure  to  them,  by  leagues  with 
foreign  states,  all  the  necessary  aids  and  advantages,  whether  in 
the  seasons  of  peace  or  war. 

VII.  5.  In  consequence  of  this,  the  sovereign  ought  to  be 
invested  with  the  power  of  assembling  and  arming  his  subjects, 
or  of  raising  other  troops  in  as  great  a  number,  as  is  necessary 
for  the  safety  and  defence  of  a  state,  and  of  making  peace,  when 
he  shall  judge  proper. 

VIII.  6.  Hence  also  arises  the  right  of  contracting  public 
engagements,  of  making  treaties  and  alliances  with  foreign 
sates,  and  of  obliging  all  the  subjects  to  observe  them. 

IX.  7.  But  as  the  public  affairs,  both  at  home  and  abroadj 
cannot  be  conducted  by  a  single  person,  and  as  the  sovereign  is 
incapable  of  discharging  all  these  duties,  he  must  certainly  have 
a  power  to  create  ministers  and  subordinate  magistrates,  whose 
business  it  is  to  take  care  of  the  public  welfare,  and  transact  the 
affairs  of  the  state  in  his  name,  and  under  his  authority.     The 


54  THE  PRINCIPLES  OF 

sovereign,  who  has  entrusted  them  with  those  employments, 
may,  and  ought  to  compel  them  to  discharge  them,  and  oblige 
them  to  give  an  exact  account  of  their  administration. 

X.  8.  Lastly  the  affairs  of  the  state  necessarily  demand,  both 
in  times  of  peace  and  war,  considerable  expenses,  which  the 
sovereign  himself  neither  can  nor  ought  to  furnish.  He  must 
therefore  have  a  right  of  reserving  to  himself  a  part  of  the  goods 
or  products  of  the  country,  or  of  obliging  the  subjects  to  con- 
tribute either  by  their  purse,  or  by  their  labor  and  personal  ser- 
vice, as  much,  as  the  public  necessities  demand,  and  this  is  cal- 
led the  right  of  subsidies  or  taxes. 

To  this  part  of  the  sovereignty  we  may  refer  the  prerogative 
of  coining  money,  the  right  of  hunting,  with  that  of  fishing, 
&c»      These  are  the  principal  parts  essential  to  sovereignty. 


END  OF  THE  FIRST  PART. 


PRINCIPLES 


POLITIC  LAW. 


PART  II. 


In  which  are  explained  the  different  forms  of government ,  the  ways 
of  acquiring  or  losing  sovereignty  y  and  the  reciprocal  duties  of 
sovereigns  and  subjects. 


i.N 


CHAP.  I. 

Of  the  various  forms  of  government. 


-ATIONS  have  been  sensible,  that  it  was  essential  to 
their  happiness  and  safety  to  establish  some  form  of  government. 
They  have  all  agreed  in  this  point,  that  it  was  necessary  to  insti- 
tute a  supreme  power,  to  whose  will  every  thing  should  be  ul- 
timately submitted. 

II.  But  the  more  the  establishment  of  a  supreme  power  is  ne- 
cessary, the  more  important  is  the  choice  of  the  person,  invest- 
ed with  that  high  dignity.  Hence  it  is  that,  in  regard  to  this 
article,  nations  are  extremely  divided,  having  entrusted  the  su- 
preme power  in  different  hands,  according  as  they  judged  it 
most  conducive  to  their  safety  and  happiness ;  neither  have 
they  taken  this  step  without  making  several  systems  and  restric- 
tions, which  may  vary  greatly.  This  is  the  origin  of  the  differ- 
ent forms  of  government. 

III.  There  are  therefore  various  forms  of  government,  ac- 
cording to  the  different  subjects,  in  whom  the  sovereignty  im- 
mediately resides,  and  according  as  it  is  inherent  either  in  a  sin- 


56  THE  PRINCIPLES  OF 

gle  person,  or  in  a  single  assembly,  more  or  less  compounded  j 
and  this  is  what  forms  the  constitution  of  the  state. 

IV.  These  different  forms  of  government  may  be  reduced  to 
two  general  classes,  namely  to  the  simple  forms,  or  to  those, 
which  are  compounded  or  mixed. 

V.  There  are  three  simple  forms  of  government ;  Democra- 
cy, Aristocracy,  and  Monarchy. 

VI.  Some  nations,  more  diffident  than  others,  have  placed 
the  sovereign  power  in  the  multitude  itself,  that  is  to  say,  in  the 
heads  of  families,  assembled  and  met  in  council ;  and  such  gov- 
ernments are  called  Popular  or  Democratic. 

VII.  Other  nations  of  a  bolder  turn,  passing  to  the  opposite 
extreme,  have  established  Monarchy,  or  the  government  of  a 
single  man.  Thus  Monarchy  is  a  state,  in  which,  the  supreme 
power,  and  all  the  rights  essential  to  it,  reside  in  a  single  per- 
son, who  is  called  King,  Monarchy  or  Emperor. 

VIII.  Others  have  kept  a  due  medium  between  those  two 
extremes,  and  lodged  the  whole  sovereign  authority  in  a  coun- 
cil, composed  of  select  members,  and  this  is  termed  an  Aris- 
tocracy, or  the  government  of  the  Nobles. 

IX.  Lastly  other  nations  have  been  persuaded,  that  it  was 
necessary,  by  a  mixture  of  the  simple  forms,  to  establish  a  com- 
pound government,  and,  making  a  division  of  the  sovereignty, 
to  intrust  the  different  parts  of  it  to  different  hands ;  to  tem- 
per, for  example,  Monarchy  with  Aristocracy ;  and  at  the  same 
time  to  give  the  people  a  share  in  the  sovereignty ;  this  may  be 
executed  different  ways. 

X.  In  order  to  have  a  more  particular  knowledge  of  the  na- 
ture of  these  different  forms  of  government,  we  must  observe, 
that,  as  in  Democracies  the  sovereign  is  a  moral  person,  formed 
by  the  union  of  all  the  heads  of  families  into  a  single  will, 
there  are  three  things  absolutely  necessary  for  the  constitution  o£ 
this  form  of  government. 

i .  That  there  be  a  certain  place,  and  regulated  times  for  de- 
liberating in  common  on  the  public  affairs  ;  the  members  of  the 
sovereign  council  might  assemble  at  different  times,  or  places, 
whence  factions  would  arise,  which  would  interrupt  the  union 
essential  to  the  state. 


POLITIC  LAW.  57 

2.  It  must  be  established  for  a  rule,  that  the  plurality  of  suf* 
frages  shall  pass  for  the  will  of  the  whole  ;  otherwise  no  affair 
could  be  determined,  it  being  impossible  that  a  great  number  of 
people  should  be  always  of  the  same  opinion.  We  must  there- 
fore esteem  it  the  essential  quality  of  a  moral  body,  that  the 
resolution  of  the  majority  shall  pass  for  the  will  of  the  whole. 

3.  Lastly  it  is  essential,  that  magistrates  should  be  appointed 
to  convene  the  people  in  extraordinary  cases,  to  dispatch  ordinary 
affairs  in  their  name,  and  to  see  that  the  decrees  of  the  assem- 
bly be  executed  ;  for,  since  the  sovereign  council  cannot  always 
sit,  it  is  evident  that  it  cannot  take  the  direction  of  every  thing 
itself. 

XI.  With  regard  to  Aristocracies,  since  the  sovereignty 
resides  in  a  council  or  senate,  composed  of  the  principal  men, 
of  the  nation,  it  is  absolutely  necessary  that  the  conditions  es- 
sential to  the  constition  of  a  Democracy,  and  which  we  have 
above  mentioned,  should  also  concur  to  establish  art  Aristoc- 
racy. 

XII.  Further,  Aristocracy  may  be  of  two  kinds,  either  by 
birth  and  hereditary,  or  elective.  The  aristocracy  by  birth,  and 
hereditary,  is  that,  which  is  confined  to  a  certain  number  offam* 
ilies,  to  which  birth  alone  gives  right,  and  which  passes  from 
parents  to  their  children,  without  any  choice,  and  to  the  exclu- 
sion of  all  others.  On  the  contrary,  the  elective  Aristocracy  is, 
that,  in  which  a  person  arrives  at  the  government  by  election 
only,  and  without  receiving  any  right  from  birth*. 

XIII.  In  a  word,  it  may  be  equally  observed  of  Aristocracies* 
and  Democracies,  that,  whether  in  a  popular  state,  or  in  a  gov- 
ernment of  the  nobles,  every  citizen,  or  every  member  of  the 
supreme  council,  has  not  the  supreme  power,  nor  even  a  part 
cf  it ;  but  this  power  resides  either  in  the  general  assembly  of 
the  people,  convened  according  to  the  laws,  or  in  the  council  of 
the  nobles  ;  for  it  is  one  thing  to  have  a  share  in  the  sovereign- 
ty, and  another  to  have  the  right  of  suffrage  in  an  assembly  in- 
Vested  with  the  sovereign  power. 

XIV.  As  to  Monarchy,  it  is  established,  when  the  whole 
body  of  the  people  confer  the  sovereign  power  on  a  single  per- 

H 


5  8  THE  PRINCIPLES  OF 

son,  which  is  done  by  an  agreement  betwixt  the  king  and  his 
subjects,  as  we  have  before  explained. 

XV.  There  is  therefore  this  essential  difference  between  Mon- 
archy and  the  two  other  forms  of  government,  that,  in  Democ- 
racies and  Aristocracies,  the  actual  exercise  of  the  sovereign 
authority  depends  on  the  concurrence  of  certain  circumstances 
of  time  and  place  ;  whareas  in  a  Monarchy,  at  least  when  it  is 
simple  and  absolute,  the  prince  can  give  his  orders  at  all  times, 
and  in  all  places,      It  is  Rome  wherever  the  Emperor  resides. 

XVI.  Another  remark,  v/hich  very  naturally  occurs  on  this 
occasion,  is,  that  in  a  Monarchy,  when  the  king  orders  any  thing 
contrary  to  justice  and  equity,  he  is  certainly  to  blame,  because 
in  him  the  civil  and  natural  wills  are  the  same  thing.  But 
when  the  assembly  of  the  people,  or  a  senate,  form  an  unjust 
resolution,  only  those  citizens  or  senators,  who  carried  the  point, 
render  themselves  really  accountable,  and  not  those,  who  were 
of  the  opposite  sentiment.  Let  this  suffice  for  the  simple  forms 
of  government. 

XVII.  As  to  mixed  or  compound  governments,  they  are  es- 
tablished, as  we  have  observed,  by  the  concurrence  of  the  three 
simple  forms,  or  only  of  two  ;  when  for  example  the  king,  the 
nobles,  and  the  people,  or  only  the  two  latter,  share  the  differ- 
ent parts  of  the  sovereignty  between  them,  so  that  one  admin- 
isters some  parts  of  it,  and  the  others  the  remainder.  This 
mixture  may  be  made  various  ways,  as  we  observe  in  most  re- 
publics. 

XVIII.  It  is  true,  to  consider  sovereignty  in  itself,  and  in  the 
height  of  plenitude  and  perfection,  all  the  rights,  which  it  in- 
cludes, ought  to  belong  to  a  single  person,  or  to  one  body,  with- 
out any  partition  j  so  that  there  be  but  one  supreme  will  to  gov- 
ern the  subject.  There  cannot  properly  speaking  be  several 
sovereigns  in  a  state,  who  shall  act  as  they  please,  independent- 
ly of  each  other.  This  is  morally  impossible,  and  besides 
would  manifestly  tend  to  the  ruin  and  destruction  of  society. 

XIX.  But  this  union  of  the  supreme  power  does  not  hinder 
the  whole  body  of  the  nation,  in  which  this  power  originally  re- 
sides, from  regulating  the  government  by  a  fundamental  law,  in 
such  a  manner,  as  to  commit  the  exercise  of  the  different  parts 


POLITIC  LAW.  59 

of  the  supreme  power  to  different  persons  or  bodies,  who  may- 
act  independently  of  each  other,in  regard  to  the  rights  committed 
to  them,  but  still  subordinate  to  the  laws,  from  which  those 
rights  are  derived. 

XX.  And  provided  the  fundamental  laws,  which  establish 
this  species  of  partition  in  the  sovereignty,  regulate  the  respec- 
tive limits  of  the  different  branches  of  the  legislature,  so  that  we 
may  easily  see  the  extent  of  their  jurisdiction  ;  this  partition 
produces  neither  a  plurality  of  sovereigns,  nor  an  opposition  be- 
tween them,  nor  any  irregularity  in  the  government. 

XXI.  In  a  word,  in  this  case  there  is,  properly  speaking,  but 
one  sovereign,  who  in  himself  is  possessed  of  the  fulness  of  pow- 
er. There  is  but  one  supreme  will.  This  sovereign  is  the 
body  of  the  people,  formed  by  the  union  of  all  the  orders  of 
the  state  j  and  this  supreme  will  is  the  very  law,  by  which  the 
whole  body  of  the  nation  makes  its  resolutions  known. 

XXII.  They,  who  thus  share  the  sovereignty  among  them, 
are  properly  no  more,  than  the  executors  of  the  law  •,  since  it 
is  from  the  law  itself,  that  they  hold  their  power.  And  as  these 
fundamental  laws  are  real  covenants,  or  what  the  civilians  call 
pacta  convetita,  between  the  different  orders  of  the  republic,*  by 
which  they  mutually  stipulate,  that  each  shall  have  such  a  par-r 
ticular  part  of  the  sovereignty,  and  that  this  shall  establish  the 
form  of  government,  it  is  evident  that,  by  these  means,  each  of 
the  contracting  parties  acquires  a  right  not  only  of  exercising  the 
power,  granted  to  it,  but  also  of  preserving  that  original  right. 

XXIII.  Such  party  cannot  even  be  divested  of  its  right  in 
spite  of  itself,  and  by  the  will  of  the  rest,  so  long  at  least  as  it 
conducts  itself  in  a  manner  conformable  to  the  laws,  and  not 
manifestly  opposite  to  the  public  welfare. 

XXIV.  In  a  word,  the  constitution  of  those  governments  can 
be  changed  only  in  the  same  manner,  and  by  the  same  meth- 
ods, by  which  it  was  established,  that  is  to  say,  by  the  unani- 
mous concurrence  of  all  the  contracting  parties,  who  have  fixed 
the  form  of  government  by  the  original  contract. 

XXV.  This  constitution  of  the  state  by  no  means  destroys 
the  union  of  a  moral  body,  composed  of  several  persons,  or  of 

*  See  part  i.  chap.  vii.  No.  35,  &c. 


oo  THE  PRINCIPLES  OF 

several  bodies,  really  distinct  in   themselves,  but  joined  by  a 
fundamental  law  in  a  mutual  engagement. 

XXVI.  From  what  has  been  said  on  the  nature  of  mixed 
or  compound  governments  it  follows,  that,  in  all  such 
states,  the  sovereignty  is  limited  ;  for  as  the  different  branches 
are  not  committed  to  a  single  person,  but  lodged  in  different 
hands,  the  power  of  those,  who  have  a  share  in  the  govern- 
ment, is  thereby  restrained  ;  and  as  they  are  thus  a  check  to 
each  other,  this  produces  such  a  balance  of  authority,  as  secures 
the  public  weal,  and  the  liberty  of  individuals. 

XXVII.  But  with  respect  to  simple  governments ;  in, 
these  the  sovereignty  may  be  either  absolute  or  limited.  Those, 
who  are  possessed  of  the  sovereignty,  exercise  it  sometimes  in 
an  absolute,  and  sometimes  in  a  limited  manner,  by  fundament- 
al laws,  which  prescribe  bounds  to  the  sovereign,  with  regard 
to  the  manner,  in  which  he  ought  to  govern. 

XXVIII.  On  this  occasion  it  is  expedient  to  observe,  that 
all  the  accidental  circumstances,  which  can  modify  simple 
Monarchies  or  Aristocracies,  and  which  in  some  measure  may 
be  said  to  limit  sovereignty,  do  not,  (or  that  reason,  change  the 
form  of  government,  which  still  continues  the  same.  One 
government  may  partake  somewhat  of  another,  when  the  man-< 
ner,  in  which  the  sovereign  governs,  seems  to  be  borrowed  from 
the  form  of  the  latter  ;  but  it  does  not,  for  that  reason,  change 
its  nature. 

XXIX.  For  example,  in  a  Democratic  state  the  people  may 
intrust  the  care  of  several  affairs  either  to  a  principal  member, 
or  to  a  senate.  In  an  Aristocracy  there  may  be  a  chief  mag- 
istrate,  invested  with  a  particular  authority,  or  an  assembly  of 
the  people  to  be  consulted  on  some  occasions.  Or  lastly,  in  a 
Monarchic  state,  important  affairs  may  be  laid  before  a  s?nate, 
&c.  But  these  accidental  circumstances  do  by  no  means  change 
the  form  of  the  government  ;  neither  is  there  a  partition  of  the 
sovereignty  on  this  account  ;  the  state  still  continues  purely 
either  Democratic,  Aristocratic,  or  Monarchic. 

XXX.  In  a  word  there  is  a  wide  difference  between  exer- 
cising a  proper  power,  and  acting  by  a  foreign  and  precarious 
authority,  which  may  every  minute  be  taken  away  by  him,  when 


POLITIC  LAW.  6t 

conferred  it.  Thus  what  constitutes  the  characteristic  of  mix- 
ed or  compound  commonwealths,  and  distinguishes  them  from 
simple  governments,  is,  that  the  different  orders  of  the  state, 
who  have  a  share  in  the  sovereignty,  possess  the  rights,  which 
they  exercise,  by  an  equal  title,  that  is  to  say,  in  virtue  of  the 
fundamental  law,  and  not  under  the  title  of  commission,  as  if 
the  one  was  only  the  minister  or  executor  of  the  other's  will. 
We  must  therefore  be  sure  to  distinguish  between  the  form  of 
government,  and  the  manner  of  governing. 

XXXI.  These  are  the  principal  observations  with  respect  to 
the  various  forms  of  government.  PufFendorf  explains  him- 
self in  a  somewhat  different  manner,  and  calls  those  govern- 
ments irregular,  which  we  have  stvled  mixed ;  and  he  gives  the 
name  of  regular  to  the  simple  governments.* 

XXXII.  But  this  regularity  is  only  in  idea  j  the  true  rule  of 
practice"ought  to  be  that,  which  is  most  conformable  to  the  end 
of  civil  society,  supposing  men  to  be  in  their  usual  state,  and 
taking  the  general  course  of  things  into  the  account,  according 
to  the  experience  of  all  countries  and  ages.  Now  on  this  foot- 
ing, the  states,  in  which  the  whole  depends  on  a  single  will, 
are  so  far  from  being  happy,  that  it  is  certain  their  subjects 
have  the  most  frequent  reason  to  lament  the  loss  of  their  nat- 
ural independence. 

XXXIII.  Besides,  it  is  with  the  body  politic,  as  with  the  hu- 
man body ;  there  is  a  difference  between  a  sound  and  cachectie 
state. 

XXXIV.  These  disorders  arise  either  from  the  abuse  of  the 
sovereign  power,  or  from  the  bad  constitution  of  the  state  ; 
and  the  causes  thereof  are  to  be  sought  for  either  in  the  defects 
of  the  governors,  or  in  those  of  the  government  itself. 

XXXV.  In  Monarchies,  the  defects  of  the  person  are,  when 
the  king  has  not  the  qualifications  necessary  for  reigning, 
when  he  has  little  or  no  attachment  to  the  public  good,  and 
when  he  delivers  his  subjects  up  as  a  prey,  either  to  the  ava- 
rice or  ambition  of  his  ministers,  &c. 

XXXVI.  With  regard  to  Aristocracies,    the  defects  of  the 

*  See  Law  cf  nature  and  nations,  book  vii,  chap,  v> 


62  THE  PRINCIPLES  OF 

persons  are,  when,  by  intrigue  and  other  sinister  methods,  they 
introduce  into  the  council  either  wicked  men,  or  such,  as  are 
incapable  of  business,  while  persons  of  merit  are  excluded  ; 
when  factions  and  cabals  are  formed  j  and  when  the  nobles 
treat  the  populace  as  slaves,  Sec. 

XXXVII.  In  fine,  we  sometimes  see  also  in  Democracies, 
that  their  assemblies  are  disturbed  with  intestine  broils,  and 
merit  is  oppressed  by  envy8  &c. 

XXXVIII.  In  regard  to  the  defects  of  government,  they 
are  of  various  kinds.  For  example,  if  the  laws  of  the  state 
be  not  conformable  to  the  natural  genius  of  the  people,  tending 
to  engage  in  a  war  a  nation,  that  is  not  naturally  warlike,  but  in- 
clined to  the  peaceful  arts  j  or  if  they  be  not  agreeable  to  the 
situation  and  the  natural  products  of  the  country  ;  thus  it  is 
bad  conduct  not  to  promote  commerce  and  manufactures  in  a 
province,  well  situated  for  that  purpose,  and  abounding  with  the 
materials  of  trade.  It  is  also  a  defect  of  government,  if  the 
constitution  of  the  state  renders  the  dispatch  of  affairs  very 
slow  or  difficult,  as  in  Poland,  where  the  opposition  of  a  single 
member  dissolves  the  diet. 

XXXIX.  It  is  customary  to  give  particular  names  to  these 
defects  in  government.  Thus  the  corruption  of  Monaixhy  is 
called  Tyranny.  Oligarchy  is  the  abuse  of  Aristocracy  ;  and 
the  abuse  of  Democracy  is  called  Ochlocracy.  But  it  often 
happens,  that  these  words  denote  less  a  defect  or  disorder  in  the 
state,  than  some  particular  passion  or  disgust  in  those,  who 
use  them. 

XL.  To  conclude  this  chapter,  we  have  only  to  take  some 
notice  of  those  compound  forms  of  government,  which  are 
formed  by  the  union  of  several  particular  states.  These  may 
be  defined  an  assemblage  of  perfect  governments  strictly  united 
by  some  particular  bond,  so  that  they  seem  to  make  but  a  sin- 
gle body  with  respect  to  the  affairs,  which  interest  them  in 
common,  though  each  preserves  its  sovereignty  full  and  entire, 
independently  of  the  others. 

XLI.  This  assemblage  is  formed  either  by  the  union  of  two 
or  more  distinct  states  under  one  and  the  same  king  •,  as  for  in-, 
stance,  England,  Scotland,  and  Ireland,  before  the  union  lately 


POLITIC  LAW.  6$ 

made  between  England  and  Scotland ;  or  when  several  inde- 
pendent states  agree  among  themselves  to  form  but  a  single 
body  •,  such  are  the  united  provinces  of  the  Netherlands,  and 
the  Swiss  cantons. 

XLII.  The  first  kind  of  union  may  happen  either  by  mar- 
riage, or  by  succession,  or  when  a  people  choose  for  their  king 
the  sovereign  of  another  country  ;  so  that  those  different  states 
come  to  be  united  under  a  prince,  who  governs  each  in  partic- 
ular by  its  fundamental  laws. 

XLIIL  As  to  the  compound  governments,  formed  by  the 
perpetual  confederacy  of  several  states,  it  is  to  be  observed, 
that  this  is  the  only  method,  by  which  several  small  govern- 
ments, too  weak  to  maintain  themselves  separately  against  their 
enemies,  are  enabled  to  preserve  their  liberties. 

XLIV.  These  confederate  states  engage  to  each  other  only 
to  exercise,  with  common  consent,  certain  parts  of  the  sove- 
reignty, especially  those,  which  relate  to  their  mutual  defence 
against  foreign  enemies.  But  each  of  the  confederates  retains 
an  entire  liberty  of  exercising,  as  it  thinks  proper,  those  parts  of 
the  sovereignty,  which  are  not  mentioned  in  the  treaty  of  union, 
as  parts,  that  ought  to  be  exercised  in  common. 

XLV.  Lastly  it  is  absolutely  necessary,  in  confederate 
states,  to  ascertain  a  time  and  place  for  assembling,  when  oc- 
casion requires,  and  to  invest  some  member  with  a  power  of 
convening  the  assembly  for  extraordinary  affairs,  and  such  as 
will  not  admit  of  delay.  Or  they  may  establish  a  perpet- 
ual assembly,  composed  of  the  deputies  of  each  state,  for  dis- 
patching common  affairs  according  to  the  orders  of  their  supe- 
riors. 

CHAP.  II. 

An  essay  on  this  question)  which  is  the  best  form  of  government  ? 

I.  XT  is  certainly  one  of  the  most  important  questions  in 
politics,  and  has  most  exercised  the  men  of  geaius  to  determine 
the  best  form  cf  government. 


64  THE  PRINCIPLES  OF 

II.  Every  form  of  government  has  its  advantages  and  incon- 
veniences inseparable  from  it.  It  would  be  in  vain  to  seek  for 
a  government  absolutely  perfect ;  and  however  perfect  it  might 
appear  in  speculation,  yet  it  is  certain,  that  in  practice,  and  un- 
der the  administration  of  men,  it  will  ever  be  attended  with 
some  particular  defects. 

III.  But  though  we  cannot  arrive  at  the  summit  of  perfection 
in  this  respect,  it  is  nevertheless  certain,  that  there  are  different 
degrees,  which  prudence  must  determine.  That  government 
ought  to  be  accounted  the  most  complete,  which  best  .answers 
the  end  of  its  institution,  and  is  attended  with  fewest  inconve- 
niencies.  Be  this  as  it  may,  the  examination  of  this  question 
furnishes  very  useful  instructions  both  to  subjects  and  sove- 
reigns. 

IV.  Disputes  on  this  subject  are  of  a  very  ancient  date  ;  and 
there  is  nothing  more  interesting  upon  the  topic,  than  what  we 
read  in  the  father  of  history,  Herodotus,  who  relates  what  pas- 
sed in  the  council  of  the  seven  chiefs  of  Persia,  when  the  gov- 
ernment was  to  be  reestablished  after  the  death  of  Cambyses, 
and  the  punishment  of  the  Magus,  who  had  usurped  the  throne 
under  the  pretext  of  being  Smerdis,  the  son  of  Cyrus* 

V.  Otanes  was  of  opinion,  that  Persia  should  be  formed  into 
a  republic,  and  spoke  nearly  in  the  following  strain.  "  I  am 
"  not  of  opinion  that  we  should  lodge  the  government  in  the 
"  hands  of  a  single  person.  You  know  to  what  excess  Cambyses 
"  proceeded,  and  to  what  degree  of  insolence  the  Magus  arrived. 
"  How  can  the  state  be  well  governed  in  a  monarchy,  where  a 
"  single  person  is  permitted  to  act  according  to  his  pleasure  ? 
w  An  authority  uncontroled  corrupts  the  most  virtuous  man, 
"  and  defeats  Jris  best  qualities.  Envy  and  insolence  flow  from 
st  riches  and  prosperity ;  and  all  other  vices  are  derived  from 
"  those  two  sources.  Kings  hate  virtuous  men,  who  oppose 
"  their  unjust  designs,  but  caress  the  wicked,  who  favor  them. 
"  A  single  person  cannot  see  every  thing  with  his  own  eyes  -, 
**  he  often  lends  a  favorable  ear  to  false  accusations  ;  he  sub- 
"  verts  the-  laws  and  customs  of  the  country ;  he  attacks  the 

""  chastity  of  women,  and  wantonly  puts  the  innocent  to  death. 
ct  When  the  people  have  the  government  in  their  own  hands, 


POLITIC  LAW,  65 

"  the  equality  among  the  members  prevents  all  those  evils. 
"  The  magistrates  are,  in  this  case,  chosen  by  lot ;  they  render 
"  an  account  of  their  administration,  and  they  form  all  their 
"  resolutions  in  common  with  the  people.  I  am  therefore  of 
*'  opinion,  that  we  ought  to  reject  Monarchy,  and  introduce  a 
"  popular  government,  because  we  rather  find  these  advantages 
"  in  a  multitude,  than  in  a  single  person."  Such  was  the  ha- 
rangue of  Otanes. 

VI.  But  Magabyscs  spoke  in  favor  of  Aristocracy.  "  I  ap- 
"  prove,"  said  he,  "  of  the  opinion  of  Otanes  with  respect  to 
"  exterminating  Monarchy,  but  I  believe  he  is  wrong  in  endeav- 
"  curing  to  persuade  us  to  trust  the  government  to  the  discre- 
"  tion  of  the  people  5  for  surely  nothing  can  be  imagined  more 
"  stupid  and  insolent,  than  the  giddy  multitude.  Why  should  we 
"  reject  the  power  of  a  single  man,  to  deliver  up  ourselves  to 
"  the  tyranny  of  a  blind  and  disorderly  populace  ?  If  a  king  set  a- 
"  bout  an  enterprise,  he  is  at  least  capable  of  listening  to  advice  ; 
"  but  the  people  are  a  blind  monster,  devoid  of  reason  and  capaci- 
"  ty.  They  are  strangers  to  decency,  virtue,  and  their  own  inter- 
"  ests.  Thev  do  every  thing  precipitately,  without  judgment, 
<:  and  without  order,  resembling  a  rapid  torrent,  which  cannot 
Ci  be  stemmed.  If  therefore  you  desire  the  ruin  of  the  Per- 
"  sians,  establish  a  popular  government.  As  to  myself,  I  am 
*'  of  opinion,  that  we  should  make  choice  of  virtuous  men,  and 
"  lodge  the  government  in  their  hands."  Such  was  the  sen- 
"  timent  of  Magabyses. 

VII.  After  him  Darius  spoke  in  the  following  terms.  "  I 
'*  am  of  opinion,  that  there  is  a  great  deal  of  good  sense  in  the 
"  speech,  which  Magabyses  has  made  against  a  popular  state ; 
"  but  I  also  think,  that  he  is  not  entirely  in  the  right,  when  he 
"  prefers  the  government  of  a  small  number  to  Monarchy.  It  is 
"  certain,  that  nothing  can  be  imagined  better,  or  more  perfect, 
"  than  the  administration  of  a  virtuous  man.  Besides,  when  a 
"  single  man  is  master,  it  is  more  difficult  for  the  enemy  to  dis- 
"  cover  his  secret  counsels  and  resolutions.  When  the  gov- 
11  ernment  is  in  the  hands  of  many,  it  is  impossible  but  enmity 
':(  and  hatred  must  arise  among  them  j  for,  as  every  one  desires 
"  his  opinion  to  be  followed,  they  graduallv  become  mutual  en- 
I 


66  THE  PRINCIPLES  OF 

"  mies.  Emulation  and  jealousy  divide  them,  and  then  their 
"  aversions  run  to  excess.  Hence  arise  seditions  ;  from  sedi- 
"  tions,  murders ;  and  from  murders  a  monarch  insensibly  be- 
"  comes  necessary.  Thus  the  government  at  length  is  sure 
"  to  fall  into  the  hands  of  a  single  person.  In  a  popular  state 
"  there  must  needs  be  a  great  store  of  malice  and  corruption. 
"  It  is  true  equality  does  not  generate  hatred  j  but  it  foments 
"  friendship  among  the  wicked,  who  support  each  other,  till 
"  some  person  or  other,  who  by  his  behavior  has  acquired  an 
"  authority  over  the  multitude,  discovers  the  frauds,  and  exposes 
"  the  perfidy  of  those  villains.  Such  a  man  shews  himself  re- 
"  ally  a  monarch ;  and  hence  we  know  that  Monarchy  is  the 
"  most  natural  government,  since  the  seditions  of  Aristocracy 
F'  and  the  corruption  of  Democracy  are  eaual  inducements  for 
"  our  uniting  the  supreme  power  in  the  hands  of  a  single  per- 
M  son." 

The  opinion  of  Darius  was  approved,  and  the  government 
of  Persia  continued  monarchic.  We  thought  this  passage  of 
history  sufficiently  interesting  to  be  related  on  this  occasion. 

VIII.  To  determine  this  question  we  must  trace  matters  to 
their  very  source.  Liberty,  under  which  we  must  comprehend 
all  the  most  valuable  enjoyments,  has  two  enemies  in  civil  soci- 
ety. The  first  is  licentiousness  and  confusion  ;  and  die  sec- 
ond is  oppression,  arising  from  tyranny. 

IX.  The  first  of  these  evils  arises  from  liberty  itself,  when  it 
is  not  kept  within  due  bounds. 

The  second  is  owing  to  the  remedy,  which  mankind  have 
contrived  against  the  former  evil,  that  is,  to  sovereignty. 

X.  The  height  of  human  felicity  and  prudence  is  to  know 
how  to  guard  against  those  two  enemies.  The  only  method  is 
to  have  a  well  constituted  government,  formed  with  such  pre- 
cautions, as  to  banish  licentiousness,  and  yet  be  no  way  intro- 
ductivc  to  tyranny. 

XI.  It  is  this  happy  temperament,  that  alone  Can  give  us  the 
idea  of  a  good  government.  It  is  evident,  that  the  political 
constitution,  which  avoids  these  extremes,  i-s  so  justly  fitted  for 
the  preservation  of  order,  and  for  providing  against  the  neces- 
sities of  the  people,  that  it  leaves  them  a  sufficient  security, 
that  this  end  shall  be  perpetually  held  in  view. 


POLITIC  LAW.  67 

XII.  But  here  we  shall  be  asked,  which  government  is  it, 
that  approaches  nearest  to  this  perfection  ?  Before  we  answer 
this  question,  it  is  proper  to  observe,  that  it  is  very  different 
from  our  being  asked,  which  is  the  most  legitimate  govern- 
ment ? 

XIII.  As  for  the  latter  question,  it  is  certain,  that  govern- 
ments of  every  kind,  which  are  founded  on  the  free  acquies- 
cence of  the  people,  whether  express  or  justified  by  a  long  and 
peaceable  possession,  are  all  equally  legitimate,  so  long  at  least 
as,  by  the  intention  of  the  sovereign,  they  tend  to  promote  the 
happiness  of  the  people.  Thus  no  other  cause  can  subvert 
a  government,  but  an  open  and  actual  violence,  either  in  its  es- 
tablishment, or  in  its  exercise  ;  T  mean  usurpation,  or  tyranny. 

XIV.  To  return  to  the  principal  question,  I  affirm,  that  the 
best  government  is  neither  absolute  Monarchy,  nor  that, 
which  is  intirely  popular.  The  former  is  too  violent,  encroach- 
es on  liberty,  and  inclines  too  much  to  tyranny  ;  the  latter  is 
too  weak,  leaves  the  people  too  much  to  themselves,  and  tends 
to  confusion  and  licentiousness. 

XV.  It  were  to  be  wished,  for  the  glory  of  sovereigns  and  for 
the  happiness  of  the  people,  that  we  could  contest  the  fact  above 
asserted  with  respect  to  absolute  governments.  We  may  ven- 
ture to  affirm,  that  nothing  can  be  compared  to  an  absolute 
government  in  the  hands  of  a  wise  and  virtuous  prince.  Or- 
der, diligence,  secrecy,  expedition,  the  greatest  enterprizes,  and 
the  most  happy  execution,  are  the  certain  effects  of  it.  Dig- 
nities, honors,  rewards,  and  punishments,  are  all  dispensed  un- 
der it  with  justice  and  discernment.  So  glorious  a  reign  is  the 
era  of  the  golden  age. 

XVI.  But  to  govern  in  this  manner  a  superior  genius,  per- 
fect virtue,  great  experience,  and  uninterrupted  application,  are 
necessary.  Man,  in  so  high  an  elevation,  is  rarely  capable  of 
so  many  accomplishments.  The  multitude  of  objects  diverts 
his  attention  ;  pride  seduces  him,  pleasure  tempts  him,  and 
flattery,  the  bane  of  the  great,  does  him  more  injury  than  all 
the  rest.  It  is  difficult  to  escape  so  many  snares  \  and  it  gen- 
erally happens,  that  an  absolute  prince  becomes  an  easy  prey  to 
his  passions,  and  consequently  renders    his  subjects   miserable. 


68  THE  PRINCIPLES  OF 

XVII.  Hence  proceeds  the  disgust  of  people  to  absolute 
governments,  and  this  disgust  sometimes  is  worked  up  to  aver- 
sion and  hatred.  This  has  also  given  occasion  to  politicians  to 
make  two  important  reflections. 

The  first  is,  that,  in  an  absolute  government,  it  is  rare  to  see 
the  people  interest  themselves  in  its  preservation.  Oppressed 
with  their  burdens,  they  long  for  a  revolution,  which  cannot 
render  their  situation  more  uncomfortable. 

The  second  is,  that  it  is  the  interest  of  princes  to  engage  the 
people  in  the  support  of  their  government,  and  to  give  them  a 
share  therein,  by  privileges,  tending  to  secure  their  liberty. 
This  is  the  best  expedient  to  promote  the  safety  of  princes  at 
home,  together  with  their  power  abroad,  and  glory  in  every 
respect. 

XVIII.  It  has  been  said  of  the  Romans,  that,  so  long  as 
they  fought  for  their  own  interests,  they  were  invincible  ;  but, 
as  soon  as  they  became  slaves  under  absolute  masters,  their 
courage  failed,  and  they  asked  for  no  more  than  bread  and 
public  diversions  j  pamm  et  circenfes. 

XIX.  On  the  contrary,  in  states,  where  the  people  have  some 
share  in  the  government,  every  individual  interests  himself  in 
the  public  good,  because  each,  according  to  his  quality  or  mer- 
it, partakes  of  the  general  success,  or  feels  the  loss,  sustained 
by  the  state.  This  is  what  renders  men  active  and  generous, 
what  inspires  them  with  an  ardent  love  of  their  country,  and 
with  an  invincible  courage,  so  as  to  be  proof  against  the  great- 
est misfortunes. 

XX.  When  Hannibal  had  gained  four  victories  over  the  Ro- 
mans, and  killed  more  than  two  hundred  thousand  of  that  na- 
tion, when,  much  about  the  same  time,  the  two  brave  Scipios 
perished  in  Spain,  not  to  mention  several  considerable  losses  at 
sea  and  in  Sicily,  who  could  have  thought,  that  Rome  could 
have  withstood  her  enemies  ?  Yet  the  virtue  of  her  citizens, 
the  love  they  bore  their  country,  and  the  interest  they  had  in  the 
government,  augmented  the  strength  of  that  republic  in  the 
midst  of  her  calamities,  and  at  last  she  surmounted  every  dif- 
ficulty. Among  the  Lacedsemonians  and  Athenians  we  find 
several  examples  to  the  same  point. 


POLITIC  LAW.  69 

XXI.  These  advantages  are  not  found  in  absolute  govern- 
ments. We  may  justly  affirm,  that  it  is  an  essential  defect  in 
them  not  to  interest  the  people  in  their  preservation  ;  that  they 
are  too  violent,  tending  too  much  to  oppression,  and  very  little 
to  the  good  of  the  subject. 

XXII.  Such  are  absolute  governments  j  those  of  the  popu- 
lar kind  are  no  better,  and  we  may  say  they  have  no  advantage 
but  libertVj  and  their  leaving  the  people  at  their  option  to  choose 
a  better. 

XXIII.  Absolute  governments  have  at  least  two  advantages  ; 
the  first  is,  that  they  have  happy  intervals,  when  in  the  hands  of 
good  princes  ;  the  second  is,  that  they  have  a  greater  degree  of 
force,  activity,  and  expedition. 

XXIV.  But  a  popular  government  has  none  of  those  advan- 
tages ;  formed  by  the  multitude,  it  bears  a  strong  resemblance 
to  that  many-headed  monster.  The  multitude  is  a  mixture  of 
aH  kinds  of  people  ;  it  contains  a  few  men  of  parts,  some  of 
whom  may  have  honest  intentions  ;  but  far  the  greater  number 
cannot  be  depended  on,  as  they  have  nothing  to  lose,  and  con- 
sequently can  hardly  be  trusted.  Besides,  a  multitude  always 
acts  with  slowness  and  confusion.  Secrecy  and  precaution  are 
advantages  unknown  to  them. 

XXV.  Liberty  is  not  wanting  in  popular  states ;  nay,  they 
have  rather  too  much  of  it,  since  it  degenerates  into  licentious- 
ness. Hence  it  is  that  they  are  ever  tottering  and  weak.  In- 
testine commotions,  or  foreign  attacks,  often  throw  them  into 
consternation.  It  is  their  ordinary  fate  to  fall  a  prey  to  the 
ambition  of  their  fellow  citizens,  or  to  foreign  usurpation,  and 
thus  to  pass  from  the  highest  liberty  to  the  lowest  slavery. 

XXVI.  This  is  proved  by  the  experience  of  different  na- 
tions. Even  at  present  Poland  is  a  striking  example  of  the  de- 
fects of  popular  government,  from  the  anarchy  and  disorder, 
which  reigns  in  that  republic.  It  is  the  sport  of  its  own  in- 
habitants and  of  foreign  nations,  and  is  frequently  the  seat  of 
intestine  war ;  because,  under  the  appearance  of  Monarchy,  it 
is  indeed  too  popular  a  government. 

XXVII.  We  need  only  read  the  histories  of  Florence  and  Ge- 
noa to  behold  a  lfvely  exhibition  of  the  misfortunes,  which  re- 


jo  THE  PRINCIPLES  OF 

publics  suffer  from  the  multitude,  when  the  latter  a! tempt  to 
govern.  The  ancient  republics,  especially  Athens,  the  most 
considerable  in  Greece,  are  capable  of  setting  this  truth  in  a 
stronger  light. 

XXVIII.  In  a  word  Rome  perished  in  the  hands  of  the 
people  ;  and  monarchy  gave  birth  to  it.  The  patricians,  who 
composed  the  senate,  by  freeing  it  from  the  regal  dignity,  had 
rendered  it  mistress  of  Italy.  The  people,  by  the  encroach- 
ment of  the  tribunes,  gradually  usurped  the  authority  of  the 
senate.  From  that  time  discipline  was  relaxed,  and  gave  place 
to  licentiousness.  At  length  the  republic  was  reduced,  by  the 
people  themselves,  to  the  most  abject  slavery. 

XXIX.  It  is  not  therefore  to  be  doubted,  but  popular  gov- 
ernments are  the  weakest  and  worst  of  all  others.  If  we  con- 
sider the  education  of  the  vulgar,  their  laborious  employments, 
their  ignorance  and  brutality,  we  must  quickly  perceive,  that 
they  are  made  to  be  governed  ;  and  that  good  order  and  their 
own  advantage  forbid  them  to  interfere  with  that  province.    . 

XXX.  If  therefore  neither  the  government  of  the  multitude, 
nor  the  absolute  will  of  a  single  person,  are  fit  to  procure  the 
happiness  of  a  nation,  it  follows,  that  the  best  governments  are 
those,  which  are  so  tempered,  as  to  secure  the  happiness  of 
the   subjects  by  avoiding  tyranny  and    licentiousness. 

XXXI.  There  are  two  ways  of  finding  this  temperament. 
The  first  consists  in  lodging  the  sovereign   in  a    council  so 

composed,  both  as  to  the  number  and  choice  of  persons,  that 
there  shall  be  amoral  certainty  of  their  having  no  other  interests, 
than  those  of  the  community,  and  of  their  being  always  ready 
to  give  a  faithful  account  of  their  conduct.  This  is  what  we 
see  happily  practised  in  most  republics. 

XXXII.  The  second  is  to  limit\he  sovereignty  of  the  prince 
in  monarchic  states,  by  fundamental  laws,  or  to  invest  the  per- 
son, who  enjoys  the  honors'  and  title  of  sovereignty,  with  on-* 
ly  a  part  of  the  supreme  authority,  and  to  lodge  the  other  in 
different  hands,  for  example  in  a  council  or  parliament.  This 
is  what  gives  birth  to  limited  monarchies.* 

XXXIII.  With  regard  to  Monarchies,  it  is  proper  for  exam- 
ple, that  the  military  and  legislative  powers,  together  with  that 

*  See  part  i.  chap,  vii,  section  26,  &c. 


POLITIC  LAW.  71 

of  raising  taxes,  should  be  lodged  in  different  hands,  to  the  end, 
that  they  may  not  be  easily  abused.  It  is  easy  to  conceive,  that 
these  restrictions  may  be  made  different  ways.  The  general 
rule,  which  prudence  directs,  is  to  limit  the  power  of  the  prince 
so,  that  no  danger  may  be  apprehended  from  it  ;  but  at  the 
same  time  not  to  carry  things  to  excess,  for  fear  of  weakening 
the  government. 

XXXIV.  By  following  this  just  medium,  the  people  will  enjoy 
the  most  perfect  liberty,  since  they  have  all  the  moral  securities, 
that  the  prince  will  not  abuse  his  power.  The  prince,  on  the 
other  hand,  being  as  it  were  under  a  necessity  of  doing  his  du- 
ty, considerably  strengthens  his  authority,  and  enjoys  a  high  de- 
gree of  happiness  and  solid  glory  ;  for,  as  the  felicity  of  the 
people  is  the  end  of  government,  it  is  also  the  surest  foun- 
dation of  the  throne.  See  what  has  been  already  said  on  this 
subject. 

XXXV.  This  species  of  Monarchy,  limited  by  a  mixed 
government,  unites  the  principal  advantages  of  absolute  Monar- 
chy, and  of  the  Aristocratic  and  popular  governments  ;  at  the 
same  time  it  avoids  the  dangers  and  inconveniences  peculiar  to 
each.  This  is  the  happy  temperament,  which  we  have  been 
endeavoring  to  find. 

XXXVI.  The  truth  of  this  remark  has  been  proved  by  the 
experience  of  past  ages.  Such  was  the  government  of  Sparta, 
Lycui'gus,  knowing  that  each  of  the  three  sorts  of  simple  gov- 
ernments had  very  great  inconveniences  ;  that  Monarchy  easily 
fell  into  arbitrary  power  and  tyranny ;  that  Aristocracy  de- 
generated into  the  oppressive  government  of  a  few  individuals  $ 
and  Democracy  into  a  wild  and  lawless  dominion  ;  thought  it 
expedient  to  combine  these  three  governments  in  that  of  Sparta, 
and  mix  them  as  it  were  into  one,  so  that  they  might  serve  as 
a  remedy  and  counterpoise  to  each  other.  This  wise  legislator 
was  not  deceived,  and  no  republic  preserved  its  laws,  customs, 
and  liberty,  longer  than  that  of  Sparta. 

XXXVII.  It  may  be  said,  that  the  government  of  the 
Romans,  under  the  republic,  united  in  some  measure,  as  that 
of  Sparta,  the  three  species  of  authority.  The  consuls  held  the 
place  of  kings,  the  senate  formed  the  public  counsel,  and  the 
people  had  also  some  share  in  the  administration. 


;2  THE  PRINCIPLES  OF 

XXXVIII.  If  modern  examples  are  wanted,  is  not  England 
at  present  a  proof  of  the  excellency  of  mixed  government  ?  Is 
there  a  nation,  every  thing  considered,  that  enjoys  a  higher  de- 
gree of  prosperity  or  reputation  ? 

XXXIX.  The  northern  nations,  which  subverted  the  Ro- 
man empire,  introduced  into  the  conquered  provinces  that  spe- 
cies of  government,  which  was  then  called  Gothic.  They  had 
kings,  lords,  and  commons  ;  and  experience  shows,  that  the 
states,  which  have  retained  that  species  of  government  have 
flourished  more  than  those,  which  have  devolved  the  whole 
government  into  the  hands  of  a  single  person. 

XL.  As  to  Aristocratic  governments,  we  must  first  distinguish 
Aristocracy  by  birth,  from  that,  which  is  elective.  The  for- 
mer has  several  advantages,  but  is  also  attended  with  very  great 
inconveniences.  It  inspires  the  nobility  with  pride,  and  enter- 
tains, between  the  grandees  and  the  people,  division,  contempt, 
and  jealousy,  which  are  productive  of  considerable  evils. 

XLI.  But  the  latter  has  all  the  advantages  of  the  former, 
without  its  defects.  As  there  is  no  privilege  of  exclusion,  and 
as  the  door  of  preferment  is  open  to  all  the  citizens,  we  find 
neither  pride  nor  division  among  them.  On  the  contrary  a 
general  emulation  glows  in  the  breasts  of  all  the  members,  con- 
verting every  thing  to  the  public  good,  and  contributing  infin- 
itely to  the  preservation  of  liberty. 

XLII.  Thus  if  we  suppose  an  elective  Aristocracy,  in  which 
the  sovereignty  is  in  the  hands  of  a  council  so  numerous,  as  to 
comprehend  the  chief  property  of  the  republic,  and  never  to 
have  any  interest  opposite  to  that  of  the  state  •,  if  besides  this 
counsel  be  so  small,  as  to  maintain  order,  harmony,  and  secre- 
cy 5  if  it  be  chosen  from  among  the  wisest,  and  most  virtuous 
citizens  ;  and  lastly  if  its  authority  be  limited  and  kept  within 
rule;  there  can  be  no  doubt  but  such  a  government  is  very 
well  adapted  to  promote  the  happiness  of  a  nation. 

XLIII.  The  most  difficult  point  in  these  goverrnents  is  to 
temper  them  in  such  a  manner,  that,  while  the  people  are  as- 
sured of  their  liberty,  by  giving  them  some  share  in  the  govern- 
ment, these  assurances  shall  not  be  carried  too  farj  so  as  to 
make  the  governfhent  approach  too  near  to  Democracy  ;   for  the 


POLITIC  LAW.  j$ 

preceding  reflections    sufficiently  evince   the    inconveniences, 
which  would  result  from  this  step. 

XLIV.  Let  us  therefore  conclude,  from  this  inquiry  into  the 
different  forms  of  government,  that  the  best  are  either  a  limit- 
ed Monarchy,  or  an  Aristocracy  tempered  with  Democracy,  by 
some  privileges  in  favour  of  the  body  of  the  people. 

XLV.  It  is  true  there  are  always  some  deductions  to  be 
made  from  the  advantages,  which  we  have  ascribed  to  those 
governments ;  but  this  is  owing  to  the  infirmity  of  human  nature, 
and  not  to  the  establishments.  The  constitution  above  des- 
cribed is  the  most  perfect,  that  can  be  imagined  •,  and,  if  we 
adulterate  it  by  our  vices  and  follies,  this  is  the  fate  of  all  sub- 
lunary affairs  ;  and  since  a  choice  must  be  made,  the  best  is  that, 
attended  with  the  fewest  inconveniences. 

XLVI.  In  a  word,  should  it  still  be  asked,  which  govern- 
ment is  best  ?  I  would  answer,  that  every  species  of  govern- 
ment is  not  equally  proper  for  every  nation  ;  and  that,  in  this- 
point,  we  must  have  a  regard  to  the  humor  and  character  of 
the  people,  and  to  the  extent  of  the  country. 

XL VII.  Great  states  can  hardly  admit  of  republican  govern- 
ments ;  hence  a  monarchy,  wisely  limited,  suits  them  better. 
But  as  to  states  of  an  ordinary  extent,  the  most  advantageous 
government  for  them  is  an  elective  aristocracy,  tempered  with 
some  privileges  in  favor  of  the  body  of  the  people. 

CHAP.  III. 

Of  the  different  ways  of  acquiring  sovereignty. 

I.  X  HE  only  just  foundation  of  sovereignty  is  the  con- 
sent, or  will  of  the  people.*  But  as  this  consent  may  be  given 
different  ways,  according  to  the  different  circumstances  attend- 
ing it  ;  we  may  distinguish  the  several  ways  of  acquiring  sov- 
ereignty. 

II.  Sometimes  a  people  are  constrained,  by  force  of  arms, 
to  submit  to  the  dominion  of  a  conqueror  ;  at  other  times  the 

*  Oa  this  subject  see  part  i.  chap  vi, 
K 


j4  THE  PRINCIPLES  OF 

people,  of  their  own  accord,  confer  the  supreme  authority  on 
some  particular  person.  Sovereignty  may  therefore  be  acquir- 
ed either  by  foixe  and  violence,  or  in  a  free  and  voluntary  man- 
ner. 

III.  These  different  acquisitions  of  sovereignty  may  agree 
in  some  measure  to  all  sorts  of  governments ;  but,  as  they  are 
most  remarkable  in  monarchies,  it  shall  be  principally  with  res- 
pect to  the  latter,  that  we  shall  examine  this  question. 

I .    Of  conquest. 

IV.  Sovereignty  is  sometimes  acquired  by  force,  or  rather  is 
seized  by  conquest  or  usurpation. 

V.  Conquest  is  the  acquisition  of  sovereignty  by  the  supe- 
riority of  a  foreign  prince's  arms,  who  reduces  the  vanquished 
to  submit  to  his  government.  Usurpation  is  properly  made  by 
a  person  naturally  subject  to  him,  from  whom  he  wrests  the 
supreme  power  ;  but  custom  often  confounds  these  two  terms. 

VI.  There  are  several  remarks  to  be  made  on  conquest,  con- 
sidered as  a  method  of  acquiring  the  sovereignty. 

i .  Conquest  in  itself  is  rather  the  occasion  of  acquiring  the 
sovereignty,  than  the  immediate  cause  of  this  acquisition.  The 
immediate  cause  is  the  consent  of  the  people,  either  tacit  or  ex- 
pressed. Without  this  consent  the  state  of  war  always  subsists 
between  two  enemies,  and  one  is  not  obliged  to  obey  the  other. 
All  that  can  be  said  is,  that  the  consent  of  the  vanquished  is  ex- 
torted by  the  superiority  of  the  conqueror. 

VII.  2.  Lawful  conquest  supposes,  that  the  conqueror  has 
had  just  reason  to  wage  war  against  the  vanquished.  Without 
this,  conquest  is  by  no  means  of  itself  a  just  title  ;  for  a  man 
cannot  acquire  a  sovereignty  over  a  nation  by  bare  seizure,  as 
over  a  thing,  which  belongs  to  no  proprietor.  Thus  when  Alex- 
ander waged  war  against  distant  nations,  who  had  never  heard  of 
his  fame,  certainly  such  a  conquest  was  no  more  a  lawful  title 
to  the  sovereignty  over  those  people,  than  robbery  is  a  lawful 
manner  of  becoming  rich.  The  quality  and  number  of  the 
persons  do  not  change  the  nature  of  the  action,  the  injury  is  the 
same,  and  the  crime  equal. 


POLITIC  LAW.  js 

VIII.  But  if  the  war  be  just,  the  conquest  is  also  the  same  ; 
for,  in  the  first  place,  it  is  a  natural  consequence  of  the  victory ; 
and  the  vanquished,  who  deliver  themselves  to  the  conqueror, 
only  purchase  their  lives  by  the  loss  of  their  liberties.  Besides, 
the  vanquished  having,  through  their  own  fault,  engaged  in  an 
unjust  war,  rather  than  grant  the  satisfaction  they  owed,  are 
supposed  to  have  tacitly  consented  to  the  conditions,  which  the 
conqueror  should  impose  upon  them,  provided  they  were  nei- 
ther unjust  nor  inhuman. 

IX.  3.  But  what  must  we  think  of  unjust  conquests,  and  oi 
submission,  extorted  by  mere  violence  ?  Can  it  give  a  lawful 
right  ?  I  answer,  we  should  distinguish  whether  the  usurper 
has  changed  the  government  from  a  republic  into  a  monarchy, 
or  dispossessed  the  lawful  monarch.  In  the  latter  case,  he  is 
obliged  to  restore  the  crown  to  the  right  owner,  or  to  his  heirs, 
till  it  can  be  presumed  that  they  have  renounced  their  preten- 
sions, and  this  is  always  presumed,  when  a  considerable  time  is 
elapsed  without  their  being  willing  or  able  to  make  any  effort  to 
recover  the  crown  ? 

X.  The  law  of  nations  therefore  admits  of  a  kind  of  prescrip- 
tion with  respect  to  sovereignty.  This  is  requisite  for  the  in- 
terest and  tranquillity  of  societies ;  a  long  and  quiet  possession 
of  the  supreme  power  must  establish  the  legality  of  it,  otherwise 
there  would  never  be  an  end  of  disputes  in  regard  to  kingdoms 
and  their  limits  ;  this  would  be  a  source  of  perpetual  quarrels, 
and  there  would  hardly  be  any  such  thing,  as  a  sovereign  lawful- 
ly possessed  of  the  supreme  authority. 

XL  It  is  indeed  the  duty  of  the  people,  in  the  beginning,  to 
resist  the  usurper  with  all  their  might,  and  to  continue  faithful 
to  their  prince ;  but  if,  in  spite  of  their  utmost  efforts,  their 
sovereign  is  defeated,  and  is  no  longer  able  to  assert  his  right, 
they  are  obliged  to  no  more,  but  may  lawfully  take  care  of  their 
own  preservation. 

XII.  The  people  cannot  live  in  a  state  of  anarchy,  and  as 
they  are  not  obliged  to  expose  themselves  to  perpetual  wars, 
in  defence  of  the  rights  of  their  former  sovereigns,  their 
consent  may  render  the  right  of  the  usurper  lawful ;  and  in  this 


y6  THE  PRINCIPLES  OF 

case  the  sovereign  dethroned  ought  to  rest  contented  with  the 
loss  of  his  dominions,  and  consider  it  as  a  misfortune. 

XIII.  With  regard  to  the  former  case,  when  the  usurper  has 
changed  the  republic  into  a  monarchy  ;  if  he  governs  with  mod- 
eration and  equity,  it  is  sufficient,  that  he  has  reigned  peaceably 
for  some  time,  to  afford  reason  to  believe,  that  the  people  con- 
sent to  his  dominion,  and  10  efface  what  was  defective  in  the 
manner  of  his  acquiring  it.  This  may  be  very  well  applied  to 
the  reign  of  Augustus.  But  if,  on  the  contrary,  the  prince, 
who  has  made  himself  master  of  the  republic,  exercises  his  pow- 
er in  a  tyrannical  manner,  and  oppresses  his  subjests,  they  are 
not  then  obliged  to  obey  him.  In  these  circumstances  the 
longest  possession  imports  no  more  than  a  long  continuation  of 
injustice. 

2.   Of  the  election  of  sovereigns. 

XIV.  But  the  most  legitimate  way  of  scquiring  sovereignty 
is  founded  on  the  free  consent  of  the  people.  This  is  effected 
either  by  the  way  of  election,  or  by  the  right  of  succession  ;  for 
which  reason  kingdoms  are  distinguished  into  elective  and  he- 
reditary. 

XV.  Election  is  that  act,  by  which  the  people  design  or  nomi- 
nate a  certain  person,  whom  they  judge  capable  of  succeeding 
the  deceased  king,  to  govern  the  state  ;  and,  so  soon  as  this 
person  has  accepted  the  offer  of  the  people,  he  is  invested  with 
the  sovereignty. 

XVI.  We  may  distinguish  two  sorts  of  elections,  one  entirely 
free  and  the  other  limited  in  certain  respects  ;  the  former,  when 
the  people  can  choose  whom  they  think  proper,  and  the  latter, 
when  they  are  obliged  for  example  to  choose  a  person  of  a  cer- 
tain nation,  a  particular  family,  religion,  &c.  Among  the  an- 
cient Persians  no  man  could  be  king,  unless  he  had  been  in- 
structed by  the  Magi.* 

XVII.  The  time  between  the  death  of  the  king  and  the  elec- 
tion of  his  successors  is  called  an  Interregnum. 

XVIII.  During  the  Interregnum  the  state  is,  as  it  were,  an 

*  See  Cic.  de  Divin.  lib.  i.  cap.  iv. 


POLITIC  LAW.  77 

Imperfect  body  without  a  head  j  yet  the  civil  society  is  not  dis- 
solved. The  sovereignty  then  returns  to  the  people,  who,  till 
they  choose  a  new  king  to  exercise  it,  have  it  even  in  their  pow- 
er to  change  the  form  of  government. 

XIX.  But  it  is  a  wise  precaution  to  prevent  the  troubles  of 
an  Interregnum,  to  nominate  beforehand  those,  who  during  that 
time,  are  to  hold  the  reigns  of  government.  Thus  in  Poland 
the  archbishop  of  Gnesna,  with  the  deputies  of  great  and  little 
Poland  are  appointed  for  that  purpose. 

XX.  The  persons,  invested  with  this  employmant,  are  called 
Regents  of  the  kingdom  ;  and  the  Romans  styled  them  Inierreges. 
They  are  temporary,  and  as  it  were  provisional  magistrates,  who, 
in  the  name  and  by  the  authority  of  the  people,  exercise  the 
acts  of  sovereignty,  so  that  they  are  obliged  to  give  an  account 
of  their  administration.  This  may  suffice  for  the  way  of  elec- 
tion. 

3.    Of  succession  to  the  crown. 

XXI.  The  other  manner  of  acquiring  sovereignty  is  the  right 
of  succession,  by  which  princes,  who  have  once  acquired  the 
crown,  transmit  it  to  their  successors. 

XXII.  It  may  seem  at  first,  that  elective  kingdoms  have  the 
advantage  over  those,  which  are  hereditary,  because,  in  the  for- 
mer, the  subjects  may  always  choose  a  prince  of  merit,  and  ca- 
pable of  governing.  However  experience  shows,  that,  taking 
all  things  into  the  account,  the  way  of  succession  is  more  con- 
ducive to  the  welfare  of  the  state. 

XXIII.  For,  1 .  by  this  method  we  avoid  the  vast  inconven- 
iences, both  foreign  and  domestic,  which  arise  from  frequent 
elections.  2.  There  is  less  contention  and  uncertainty  with 
respect  to  the  title  of  the  successor.  3.  A  prince,  whose  crown 
is  hereditary,  all  other  circumstances  being  equal,  will  take  great- 
er care  of  his  k'ngdom,  and  spare  his  subjects  more,  in  hopes  of 
leaving  the  crown  to  his  children,  than  if  he  only  possessed  it 
for  life.  4.  A  kingdom,  where  the  succession  is  regulated,  has 
greater  stability  and  force.  It  can  form  mightier  projects,  and 
pursue  them  more  vigorously,  than  if  it  were  elective.  5.  In 
^  word,  the  person  of  the  prince  strikes  the  people  with  greater 


78  THE  PRINCIPLES  OF 

reverence,  and  they  have  reason  to  hope,  that  the  splendor  of 
his  descent,  and  the  impressions  of  his  education,  will  inspire 
him  with  the  necessary  qualities  for  holding  the  reigns  of  gov- 
ernment. 

XXIV.  The  order  of  succession  is  regulated  either  by  the 
will  of  the  last  king,  or  by  that  of  the  people. 

XXV.  In  kingdoms  truly  patrimonial,  every  king  has  a  right 
to  regulate  the  succession,  and  to  dispose  of  the  crown  as  he  has 
a  mind ;  provided  the  choice  he  makes  of  his  successor,  and  the 
manner,  in  which  he  settles  the  state,  be  not  manifestly  oppo- 
site to  the  public  good,  which,  even  in  patrimonial  kingdoms, 
is  ever  the  supreme  law. 

XXVI.  But  if  the  king,  prevented  perhaps  by  death,  has  not 
named  his  successor,  it  seems  natural  to  follow  the  laws  or  cus- 
toms, established  in  that  country,  concerning  private  inheritan- 
ces, so  far  at  least,  as  the  safety  of  the  state  will  admit.*  But 
it  is  certain  that  in  those  cases,  the  most  approved  and  powerful 
candidate  will  always  carry  it. 

XXVII.  In  kingdoms,  which  are  not  patrimonial,  the  people 
regulate  the  order  of  succession.  And,  although  they  may  es- 
tablish the  succession  as  they  please,  yet  prudence  requires  they 
should  follow  the  method  most  advantageous  to  the  state,  best 
adapted  to  maintain  order  and  peace,  and  most  expedient  to  pro- 
mote the  public  security. 

XXVIII.  The  usual  methods  are,  a  succession  simply  hered- 
itary, which  follows  nearly  the  rules  of  common  inheritances  j 
and  the  lineal  succession,  which  receives  more  particular  limi- 
tations. 

XXIX.  The  good  of  the  state  therefore  requires,  that  a  suc- 
cession simply  hereditary  should  vary  in  several  things  from  pri- 
vate inheritances. 

i.  The  kingdom  ought  to  remain  indivisible,  and  not  be 
shared  among  several  heirs  in  the  same  degree ;  for,  in  the  first 
place,  this  would  considerably  weaken  the  state,  and  render  it 
less  proper  to  resist  the  attacks  of  a  foreign  enemy.  Besides, 
the  subjects,  having  different  masters,  would  no  longer  be  so 
*  See  the  Law  of  Nature  and  Nations,  book  vii.  chap.  vii.  $  u. 


POLITIC  LAW.  79 

closely  united  among  themselves ;  and  lastly  this  might  lay  a 
foundation  for  intestine  wars,  as  experience  has  too  often  evinc- 
ed. 

XXX.  2.  The  crown  ought  to  remain  in  the  posterity  of 
the  first  possessor,  and  not  pass  to  his  relations  in  a  collateral  line, 
and  much  less  to  those,  who  have  only  connexions  of  affinity 
with  him.  This  is  no  doubt,  the  intention  of  a  people,  who 
have  rendered  the  crown  hereditary  in  any  one  family.  Thus, 
unless  it  is  otherwise  determined,  in  default  of  the  descendants 
of  the  first  possessor,  the  right  of  disposing  of  the  kingdom  re- 
turns to  the  nation. 

XXXI.  3.  Those  only  ought  to  be  admitted  to  the  succession, 
who  are  born  of  a  marriage  conformable  to  the  laws  of  the 
nation.  For  this  there  are  several  reasons.  1 .  This  was  un- 
doubtedly the  intention  of  the  people  when  they  settled  the 
crown  on  the  descendants  of  the  king.  2.  The  people  have 
not  the  same  respect  for  the  king's  natural  or  base  sons,  as  for 
his  lawful  children.  3.  The  father  of  natural  children  is  not 
known  for  certain,  there  being  no  sure  method  of  ascertaining 
the  father  of  a  child,  born  out  of  wedlock  5  and  yet  it  is  of 
the  last  importance,  that  there  should  be  no  doubt  about  the 
birth  of  those,  who  are  to  reign,  in  order  to  avoid  the  disputes 
which  might  embroil  the  kingdom.  Hence  it  is,  that,  in  sev- 
eral countries,  the  queen  is  delivered  in  public,  or  in  the  pres- 
ence of  several  persons. 

XXXII.  4.  Adopted  children,  not  being  of  the  royal  blood, 
are  also  excluded  from  the  crown,  which  ought  to  revert  to  the 
people  so  soon  as  the  royal  line  fails. 

XXXIII.  5,  Among  those,  who  are  in  the  same  degree, 
whether  really  or  by  representation,  the  males  are  to  be  prefer- 
red to  the  females  5  because  they  are  presumed  more  proper 
for  the  command  of  armies,  and  for  exercising  the  other  func- 
tions of  government. 

XXXIV.  6.  Among  several  males  or  several  females  in  the 
same  degree,  the  eldest  ought  to  succeed.  It  is  birth,  which 
gives -this  right  ;  for  the  crown  being  at  the  same  time  indivis- 
ible and  hereditary,  the  eldest,  in  consequence  of  his  birth,  has 


8o  THE  PRINCIPLES  OF 

a  preference,  df  which  the  younger  cannot  deprive  him.  But 
it  is  just,  that  the  eldest  should  give  his  brothers  a  sufficient 
cy  to  support  themselves  decently,  and  in  a  manner  suita- 
ble to  their  rank.  What  is  allotted  them  for  this  purpose  is  dis- 
tinguished by  the  name  of  Appennage. 

XXXV.  7.  Lastly  we  must  observe,  that  the  crown  does 
not  pass  to  the  successor  in  consequence  of  the  pleasure  of  the 
deceased  king,  but  by  the  will  of  the  people,  who  have  settled 
it  on  the  royal  family.  Hence  it  follows,  that  the  inheritance 
of  the  particular  estate  of  the  king,  and  that  of  the  crown,  are 
of  a  quite  different  nature,  and  have  no  connexion  with  each 
other  ;  so  that,  strictly  speaking,  the  successor  may  accept  of 
the  crown,  and  refuse  the  private  inheritance  ;  and  in  this  case 
he  is  not  obliged  to  pay  the  debts,  due  upon  this  particular 
estate. 

XXXVI.  But  it  is  certain,  that  honor  and  equity  hardly 
permit  a  prince,  who  ascends  the  throne,  to  use  this  right  ;  and 
that,  if  he  has  the  glory  of  his  royal  house  at  heart,  he  will,  by 
economy  and  frugality,  be  enabled  to  pay  the  debts  of  his  pre- 
decessor. But  this  ought  not  to  be  done  at  the  expense  of  the 
gublic.      These  are  the  rules  of  succession  simply    hereditary. 

XXXVII.  But  since  in  this  hereditary  succession,  where  the 
next  heir  to  the  deceased  king  is  called  to  the  crown,  terrible 
disputes  may  happen  concerning  the  degree  of  proximity,  when 
those,  who  remain,  are  a  little  distant  from  the  common  stem  > 
several  nations  have  established  the  lineal  succession  from  branch 
to  branch,  the  rules  of  which  are  these  following. 

1.  All  those  descended  from  the  royal  founder  are  account- 
ed so  many  lines  or  branches,  each  of  which  has  a  right  to  the 
crown  according  to  the  degree  of  its  proximity. 

2.  Among  those  of  this  line,  who  are  in  the  same  degree, 
in  the  first  place  sex,  and  then  age,  gives  the  preference. 

3.  "We  must  not  pass  from  one  line  to  another,  so  long  a3 
there  remains  one  of  the  preceding,  even  though  there  should 
be  another  line  of  relations  nearer  to  the  deceased  king.  For 
example  : 


Politic  law. 


*; 


Lewis.    I 


i \ 

I       I 

*■-, * 


|    Henry.    J 


r~" 


Charles. 


1 \ 

I       I 

v / 


I      i 


A  king  leaves  three  sons,  Lewis,  Charles,  and  Henry.  The 
son  of  Lewis,  who  succeeds  him,  dies  without  children  ;  Charles 
leaves  a  grandson  ;  Henry  is  still  living,  and  is  the  uncle  of  the 
deceased  king ;  the  grandchild  of  Charles  is  only  his  cousiri 
german  j  and  yet  this  grandchild  will  have  the  crown,  as  being 
transmitted  to  him  by  his  grandfather,  whose  line  has  excluded 
Henry  and  his  descendants,  till  it  be  quite  extinct. 

4.  Every  one  has  therefore  a  right  to  succeed  in  his  rank, 
and  transmits  this  right  to  his  descendants,  with  the  same  order 
of  succession,  though  he  has  never  reigned  himself ;  that  is  to 
say,  the  right  of  the  deceased  passes  to  the  living,  and  that  of 
the  living  to  the  deceased. 

5.  If  the  last  king  has  died  without  issue,  we  make  choice 
•f  the  nearest  line  to  his,  and  so  on. 


tz  THE  PRINCIPLES  OF 

XXXVIII.  There  are  two  principal  kinds  of  lineal  succes- 
sion, namely  Cognatic  and  Agnatic.  These  names  come  from 
the  Latin  words  Cegnati  and  Agnati,  the  former  of  which,  in 
the  Roman  law,  signifies  the  relations  on  the  mother's  side,  and 
the  latter  those,  on  the  father's  side. 

XXXIX.  The  Cognatic  lineal  succession  is  that,  which  does 
riot  exclude  women  from  the  succession,  but  only  calls  them 
after  the  males  in  the  same  line  ;  so  that,  when  only  women 
remain,  there  is  no  transition  made  to  another  line,  but  the  suc- 
cession runs  back  to  the  female  again,  in  case  the  males,  who 
were  superior  or  equal  to  them  in  other  respects,  shall  happen 
to  fail  with  all  their  descendants.  This  succession  is  also  cal- 
led Castilian.  Hence  it  follows,  that  the  daughter  of  the  son 
of  the  last  king  is  preferred  to  the  son  of  the  daughter  of  the 
same  prince,  and  the  daughter  of  one  of  his  brothers  to  the  son 
of  one  of  his  sisters. 

XL.  The  Agnatic  lineal  succession  is  that,  in  which  only  the 
male  issue  of  males  succeeds ;  so  that  women,  and  all  those 
descending  from  thtm,  are  perpetually  excluded.  It  is  also 
called  the  French  succession.  This  exclusion  of  women  and 
their  descendants  is  principally  established  to  hinder  the  crown 
from  devolving  to  a  foreign  race,  by  the  marriage  of  princes- 
ses of  the  blood  royal. 

XLI.  These  are  the  principal  kinds  of  succession  in  use,  and 
may  be  tempered  in  different  manners  by  the  people  ;  but 
prudence  directs  us  to  prefer  those,  which  are  subject  to  the 
least  difficulty  ;  and  in  this  respect  the  lineal  succession  has  the 
advantage  over  that,  which  is  simply  hereditary. 

XLII.  Several  questions,  equally  curious  and  important,  may 
be  siarted,  with  regard  to  the  succession  of  kingdoms.  On 
this  subject  the  reader  may  consult  Grotius.*  We  shall  only 
examine  who  has  a  right  to  decide  the  disputes,  that  may  arise 
between  two  or  more  pretenders  to  a  crown  ? 

i.  If  the  kingdom  be  patrimonial,  and  disputes  arise  after 
the  death  of  the  king,  the  best  method  is  to  refer  the  cause  to 
arbitrators  of  the  royal  family.  The  welfare  and  peace  of  the 
kingdom  recommended  this  conduct. 

2.  But  if,  in  kingdoms  established  by  the  voluntary  act  of 
'The  Right  of  war  and  peace,  book  ii.  chap.  vii.  »ect,  »5,  &c. 


POLITIC  LAW.  83 

the  people,  the  dispute  arises  even  in  the  king's  life  time,  he- is 
not  a  competent  judge  of  it ;  for  then  the  people  must  have  in- 
vested him  with  the  power  of  regulating  the  succession  accord- 
ing to  his  own  pleasure,  which  is  not  to  be  supposed.  It  there- 
fore belongs  to  the  people  to  decide  the  dispute,  either  by  them- 
selves or  by  their  representatives. 

3.  The  same  holds  true,  if  the  dispute  does  not  arise  till  af- 
ter the  death  of  the  king.  In  this  case  it  is  either  necessary 
to  determine  which  of  the  pretenders  is  nearest  to  the  deceased 
sovereign ;  and  this  is  a  matter  of  fact,  which  the  people  only 
ought  to  determine,  because  they  are  principally  interested  in  it. 

4.  Or  the  point  is  to  know  what  degree,  or  line,  ought  to 
have  the  preference  according  to  the  order  of  succession,  estab- 
lish by  the  people  ;  and  then  it  is  a  matter  of  right.  Now  who 
can  determine  better  this  point,  than  the  people  themselves,  who 
have  established  the  order  of  succession  ?  Otherwise  there 
would  be  no  method  of  deciding  the  dispute  but  by  force  of 
arms,  which  would  be  entirely  opposite  to  the  good  elf  the  so- 
ciety. 

XLIII.  But,  to  avoid  every  perplexity  of  this  kind,  it  would 
be  proper  that  the  people  should,  by  a  fundamental  law,  ex- 
pressly reserve  to  themselves  the  right  of  judging  in  the  above 
cases.  What  has  been  said  is  sufficient  on  the  different  ways 
of  acquiring  sovereignty. 

CHAP.  IV. 

Of  the  different  ways  of  losing  sovereignty. 


iL 


lET  us  now  inquire  how  sovereignty  maybe  lost ;  and 
in  this  there  is  no  great  difficulty,  after  the  principles  we  have 
established  on  the  ways  of  acquiring  it. 

II.  Sovereignty  may  be  lost  by  abdication,  that  is,  when  the 
reigning  prince  renounces  the  sovereignty,  so  far  as  it  regards 
himself.  Of  this  the  history  even  of  latter  ages  furnishes  us 
with  remarkable  examples. 

III.  As  sovereignty  derives  its  original  from  a  covenant  be- 
tween the  king  and  his  subjects  ;  if,  for  plausible  reasons,  the 


S4  THE  PRINCIPLES  OF 

king  thinks  proper  to  renounce  the  supreme  dignity,  the  people 
have  not  properly  a  right  to  constrain  him  to  keep  it. 

IV.  But  such  an  abdication  must  not  be  made  at  an  unsea^ 
sonable  juncture  j  as  for  instance  when  the  kisgdom  is  likely  to 
§ink  into  a  minority,  especially  if  it  be  threatened  with  a  war  j 
or  when  the  prince,  by  his  bad  conduct,  has  thrown  the  state 
into  a  dangerous  convulsion,  in  which  he  cannot  abandon  it 
without  betraying  his  trust,  and  ruining  his  country. 

V.  But  we  may  safely  say,  that  a  prince  very  rarely  finds 
himself  in  such  circumstances,  as  should  engage  him  to  renounce 
the  crown.  However  his  affairs  may  be  situated,  he  may  ease 
himself  of  the  drudgery  of  government,  and  still  retain  the  su- 
perior command.  A  king  ought  to  die  upon  the  throne  ;  and 
it  is  a  weakness  unworthy  of  him,  to  divest  himself  of  his  au- 
thority. Besides,  experience  has  shown,  that  abdication  is  too 
frequently  attended  with  unhappy  catastrophes. 

VI.  It  is  therefore  certain,  that  a  prince  may,  for  himself* 
renounce  the  crown,  or  the  right  of  succession.  But  there  is 
great  doubt  whether  he  can  do  it  for  his  children. 

VII.  To  judge  rightly  of  this  point,  which  has  embarrassed 
so  many  politicians,  we  must  establish  the  following  principles. 

I.  Every  acquisition  of  right  or  power  over  another,  and  con- 
sequently of  sovereignty,  supposes  the  consent  of  him,  over 
whom  this  right  is  to  be  acquired,  and  the  acceptance  of  him, 
who  is  to  acquire  it.  Till  this  acceptance  is  settled,  the  inten- 
tion of  the  former  does  not  produce,  in  favor  of  the  latter,  an 
absolute  and  irrevocable  right.  It  is  only  a  simple  designation, 
which  he  is  at  liberty  to  accept  or  not. 

VIII.  2.  Let  us  apply  these  principles.  The  princes  of  the 
blood  royal,  who  have  accepted  the  will  of  the  people,  by  which 
the  crown  has  been  conferred  on  them,  have  certainly  thereby 
acquired  an  absolute  and  irrevocable  right,  of  which  they  can- 
not be  stripped  without  their  consent. 

IX.  3.  With  regard  to  those,  who  are  not  yet  born,  as  they 
have  not  accepted  the  designation  of  the  people,  they  have  not 
as  yet  acquired  any  right.  Hence  it  follows,  that  in  relation  to 
them,  this  designation  is  only  an  imperfect  act,  a  kind  of  ex- 
pectancy, the  completion  of  which  entirely  depends  on  the  will 
;?£  the  peotle. 


POLITIC  LAW.  $5 

X.  4.  But  it  may  be  said,  the  ancestors  of  those,  who  are 
not  yet  born,  have  consented  and  stipulated  for  them,  and  conse- 
quently received  the  engagement  of  the  people  in  their  behalf. 
But  this  is  rather  an  argument  infavor  of  renunciation,  which  it  ef- 
fectually establishes ;  for  as  the  right  of  those,  who  are  not  yet 
born,  has  no  other  foundation,  than  the  concurrence  of  the  will  of 
the  people  and  of  their  ancestors,  it  is  evident  that  this  right 
may  be  taken  from  them,  without  injustice,  by  those  very  per- 
sons, from  the  single  will  of  whom  they  hold  it. 

XI.  5.  The  single  will  of  a  prince,  without  the  consent  of 
the  nation,  cannot  effectually  exclude  his  children  from  the 
crown,  to  which  the  people  have  called  them.  In  like  manner 
the  single  will  of  the  people,  without  the  consent  of  the  prince, 
cannot  deprive  his  children  of  an  expectancy,  which  their  fa- 
ther has  stipulated  with  the  people  for  in  their  favor.  But,  if 
these  two  wills  unite,  they  may  without  doubt  alter  what  they 
have  established. 

XII.  6.  It  is  true,  this  renunciation  ought  not  to  be  made 
without  a  cause,  and  through  inconstancy  and  levity.  Under 
these  circumstances  it  cannot  be  justified,  and  the  good  of  the 
state  does  not  permit,  that,  without  necessity,  an  alteration 
should  be  made  in  the  order  of  the  succession. 

XIII.  7.  If,  on  the  other  hand,  the  nation  be  so  situated,  that 
the  renunciation  of  a  prince,  or  a  princess,  is  absolutely  neces- 
sary to  its  tranquillity  and  happiness,  then  the  supreme  law  of 
the  public  good,  which  has  established  the  order  of  the  succes- 
sion, requires  it  should  be  set  aside. 

XIV.  8.  Let  us  add,  that  it  is  for  the  general  good  of  na- 
tions, that  such  renunciations  be  valid,  the  parties  interested, 
should  not  attempt  to  disannul  them.  For  there  are  times  and 
conjunctures,  in  which  they  are  necessary  for  the  welfare  of 
the  state  •,  and  if  those,  with  whom  we  are  treating,  should, 
come  to  think,  that  the  renunciation  would  afterwards  be  set 
aside,  they  certainly  would  have  nothing  to  do  with  us.  Now 
this  must  be  productive  of  bloody  and  cruel  wars.  Gro- 
tius  decides  this  question  nearly  in  the  same  manner.  The  rea- 
der may  see  what  he  says  of  it.* 

*  Bock  ii.  chap.  vii.  §  26,  and  book  >i.  dtap.  iv.  §  io. 


86  THE  PRINCIPLES  OF 

XV.  9.  Since  war  or  conquest  is  a  method  of  acquiring 
sovereignty,  as  we  have  seen  in  the  preceding  chapter,  it  is  evi- 
dently also  a  mean  of  losing  it. 

XVI.  With  regard  to  tyranny  and  the  deposing  of  sove- 
reigns, both  which  are  also  ways  of  losing  the  supreme  power, 
as  these  two  articles  bear  some  relation  to  the  duties  of  subjects 
towards  their  sovereigns,  we  shall  treat  of  them  in  the  next 
chapter  more  particularly,  after  we  have  considered  those  duties. 

CHAP.  V. 

Of  the  duties  of  subjects  in  general. 


iA 


.CCORDING  to  the  plan  we  have  laid  down,  we 
must  here  treat  of  the  duties  of  subjects.  Puffendorf  has 
given  us  a  clear  and  distinct  idea  of  them,  in  the  last  chapter  of 
his  Duties  of  a  Man  and  a  Citizen.  We  shall  follow  him  step 
by  step. 

II.  The  duties  of  subjects  are  either  general  or  particular  j 
and  both  flow  from  their  state  and  condition. 

III.  All  subjects  have  this  in  common,  that  they  live  under 
the  same  sovereign  and  the  same  government,  and  that  they  are 
members  of  the  same  state.  From  these  relations  the  general 
duties  arise. 

IV.  But  as  they  have  different  employments,  enjoy  different 
posts  in  the  state, 'and  follow  different  professions  j  hence  al- 
so arise  their  particular  duties. 

V.  It  is  also  to  be  observed,  that  the  duties  of  subjects  sup- 
pose and  include  these  of  man,  considered  simply  as  such,  and 
as  a  member  of  human  society  in  general. 

VI.  The  general  duties  of  subjects  have,  for  their  object, 
either  the  governors  of  the  state,  or  the  whole  body  of  the  peo- 
ple, viz.  their  country,  or  the  individuals  among  their  fellow 
subjects. 

VII.  As  to  sovereigns  and  governors  of  the  state,  every  sub- 
ject owes  them  that  respect,  fidelity,  and  obedience,  which  their 
character  demands.  Hence  it  follows,  that  we  ought  to  be 
contented  with  the  present  government,  and  to  form  no  cabals 


POLITIC  LAW.  87 

nor  seditions,  but  to  be  attached  to  the  interest  of  the  reigning 
prince  more,  than  to  that  of  any  other  person  j  to  pay  him  hon- 
or, to  think  favorably  of  him,  and  to  speak  with  respect  of  him 
and  his  actions.  We  ought  even  to  have  a  veneration  for  the 
memory  of  good  princes,  &c. 

VIII.  With  respect  to  the  whole  body  of  the  state,  a  good 
subject  makes  it  his  rule  to  prefer  the  public  welfare  to  every 
thing  else,  bravely  to  sacrifice  his  fortune,  and  his  private,  inter- 
ests, and  even  his  life,  for  the  preservation  of  the  state  5  and  to 
employ  all  his  abilities  and  his  industry  to  advance  the  honor, 
and  to  procure  the  advantage  of  his  native  country. 

IX.  Lastly  the  duty  of  a  subject  to  his  fellow  subjects  con- 
sists in  living  with  them,  as  much  as  he  possibly  can,  in  peace 
and  strict  union,  in  being  mild,  complaisant,  affable,  and 
obliging  to  each  of  them,  in  creating  no  trouble  by  a  rude  or 
litigious  behaviour,  and  bearing  no  envy  or  prejudice  against  the 
happiness  of  others,  &c. 

X.  As  to  the  particular  duties  of  subjects,  they  are  connect- 
ed with  the  particular  employments,  which  they  follow  in  socie- 
ty. We  shall  here  lay  down  some  general  rules  in  regard  to 
this  matter. 

1.  A  subject  ought  not  to  aspire  after  any  public  employ- 
ment, nor  even  to  accept  of  it,  when  he  is  sensible,  that  he  is 
not  duly  qualified  for  it.  2.  He  ought  not  to  accept  of  more 
employments,  than  he  can  discharge.  3.  He  should  not  use  un- 
lawful means  to  obtain  public  offices.  4.  It  is  even  sometimes  a 
kind  of  justice  not  to  seek  after  certain  employments,  which  are 
not  necessary  to  us,  and  which  may  be  as  well  filled  by  others, 
for  whom  they  are  perhaps  more  adapted.  5.  He  ought  to  dis- 
charge the  several  functions  of  the  employments  he  has  obtain- 
ed, with  the  utmost  application,  exactness,  and  fidelity. 

XL  Nothing  is  more  easy,  than  to  apply  these  general  max- 
ims to  the  particular  employments  of  society,  and  to  draw  infe- 
rences proper  to  each  of  them  ;  as  for  instance,  with  respect 
to  ministers  and  counsellors  of  state,  ministers  of  religion,  pub- 
lic professors,  magistrates  and  judges,  officers  in  the  army  and 
soldiers,  receivers  of  taxes,  ambassadors,  &c. 

XII.  The  particular  duties  of  subjects  cease  with  the  public 


88  THE  PRINCIPLES  OF 

charges,  whence  they  arise.  But  as  to  the  general  duties,  they 
subsist  so  long,  as  a  person  remains  subject  to  the  state.  Now 
a  man  ceases  to  be  a  subject  principally  three  ways.  i.  When 
he  goes  to  settle  elsewhere.  2.  When  he  is  banished  from  ?. 
country  for  some  crime  and  deprived  of  the  rights  of  a  subject. 
3.  And  lastly  when  he  is  reduced  to  a  necessity  of  submitting 
to  the  dominion  of  a  conqueror. 

'XIII.  It  is  a  right  inherent  in  all  free  people,  that  every 
man  should  have  the  liberty  of  removing  out  of  the  common- 
wealth, if  he  thinks  proper.  In  a  word,  when  a  person  becomes 
member  of  a  state,  he  does  not  thereby  renounce  the  care  of 
himself  and  his  own  private  affairs.  On  the  contrary,  he  seeks 
a  powerful  protection,  under  the  shelter  of  which  he  may  pro- 
cure to  himself  both  the  necessaries  and  the  conveniences  of 
life.  Thus  the  subjects  of  a  state  cannot  be  denied  the  liberty 
of  settling  elsewhere,  in  order  to  procure  those  advantages, 
which  they  do  not  enjoy  id  their  native  country. 

XIV.  On  this  occasion  there  are  however  certain  maxims  of 
duty  and  decency,  which  cannot  be  dispensed  with. 

1.  In  general  a  man  ought  not  to  quit  his  native  country 
without  the  permission  of  his  sovereign.  But  his  sovereign 
ought  not  to  refuse  it  him,  without  very  important  reasons. 

2.  It  would  be  contrary  to  the  duty  of  a  good  subject  td 
abandon  his  native  country  at  an  unseasonable  juncture,  and 
when  the  state  has  a  particular  interest,  that  he  should  stay  at 
home.* 

3.  If  die  laws  of  the  country  have  determined  any  thing  in 
this  point,  we  must  be  determined  by  them  ;  for  we  have  con- 
sented to  those  laws  in  becoming  members  of  the  state. 

XV.  The  Romans  forced  no  person  to  continue  under  their 
government,  and  Cicerof  highly  commends  this  maxim,  calling 
it  the  surest  foundation  of  liberty,  "  which  consists  in  being 
"  able  to  preserve  or  renounce  our  right,  as  we  think  proper." 

*  See  Grotius  on  the  Right  of  War  and  Peace,  book  ii.  chap.  iv.  §  24. 

\  O  excellent  and  divine  laws,  enacted  by  our  ancestors  in  the  beginning  of 
the  Romon  empire — Let  no  man  change  his  city  against  his  will,  nor  let  him 
be  compelled  to  stay  in  it.  These  are  the  surest  foundations  of  our  liberty,  that 
every  one  should  have  it  in  his  power  either  to  preserve  or  relinquish  his  right. 
Orat.  pro  L.  Corn.  Balb.  cap,  13.  adde  Leg.  I?,  sect.  9.  Digest,  dc  cap.  diminut 
et  postlim.  lib.  49,  tit,  IJ. 


POLITIC  LAW.  89 

XVI.  Some  propose  this  question,  whether  subjects  can  go 
out  of  the  state  in  great  companies  ?  In  this  point  Grotius  and 
Puffendorf  are  of  opposite  sentiments.*  As  for  my  own  part, 
I  am  of  opinion,  that  it  can  hardly  happen,  that  subjects  should 
go  out  of  the  state  in  large  companies,  except  in  one  or  other 
of  these  two  cases  ;  either  when  the  government  is  tyrannical, 
or  when  a  multitude  of  people  cannot  subsist  in  the  country ; 
as  when  manufacturers,  for  example,  or  other  tradesmen,  can- 
not find  the  means  of  making  or  distributing  their  commodities. 
Under  these  circumstances,  the  subjects  may  retire  if  they  will, 
and  they  are  authorized  so  to  do  by  virtue  of  a  tacit  exception. 
If  the  government  be  tyrannical,  it  is  the  duty  of  the  sovereign 
to  change  his  conduct ;  for  no  subject  is  obliged  to  live  under 
tyranny.  If  misery  forces  them  to  remove,  this  is  also  a  rea- 
sonable exception  against  the  most  express  engagements,  unless 
the  sovereign  furnishes  them  with  the  means  of  subsistence. 
But,  except  in  those  cases,  were  the  subjects  to  remove  in  great 
companies,  without  a  cause,  and  by  a  kind  of  general  desertion, 
the  sovereign  may  certainly  oppose  their  removal,  if  he  finds 
that  the  state  suffers  great  prejudice  by  it. 

XVII.  A  man  ceases  to  be  a  subject  of  the  state,  when  he 
is  forever  banished,  in  punishment  for  some  crime.  For  the  mo- 
ment, that  the  state  will  not  acknowledge  a  man  to  be  one  of  its 
members,  but  drives  him  from  its  territories,  he  is  released  from 
his  engagements  as  a  subject.  The  civilians  call  this  punish- 
ment a  civil  death.  But  it  is  evident  that  the  state,  or  sovereign, 
cannot  expel  a  subject  from  their  territories  whenever  they 
please,  unles  he  has  deserved  it  by  the  commission  of  some 
crime. 

XVIII.  Lastly  a  man  may  cease  to  be  a  subject  by  the  su- 
perior force  of  an  enemy,  by  which  he  is  reduced  to  a  necessity 
of  submitting  to  his  dominion  ;  and  this  necessity  is  founded  on 
the  right,  which  every  man  has_to  take  care  of  his  own  preserv- 
ation. 

*  See  Grotius,  ubi  sufra,md  Puffendorf  of  the  L;w  of  Nature  and  Nations,  book 
viii,  chap.  xi.  §  4, 

M 


<p  THE  PRINCIPLES  OF 


CHAP.  VI. 

Of  the  inviolable  rights  of  sovereignty,  of  the  deposing  of  sovereigns, 
of  the  abuse  of  the  supreme  power,  and  of  tyranny. 

I.  V  V  HAT  we  have  said  in  the  preceding  chapter,  con- 
cerning the  duties  of  subjects  to  their  sovereigns,  admits  of  no 
difficulty.  We  are  agreed  in  general  upon  the  rule,  that  the 
person  of  the  sovereign  should  be  sacred  and  inviolable.  But 
the  question  is  whether  this  prerogative  of  the  sovereign  be  such, 
that  it  is  never  lawful  for  the  people  to  rise  against  him,  to 
cast  him  from  the  throne,  or  to  change  the  form  of  govern- 
ment ? 

It.  In  answer  to  this  question,  I  observe  in  the  first  place, 
that  the  nature  and  end  of  government  lay  an  indispensable  ob- 
ligation on  all  subjects  not  to  resist  their  sovereign,  but  to  res- 
pect and  obey  him,  so  fong  as  he  uses  his  power  with  equity 
and  moderation,  and  does  not  exceed  the  limits  of  his  authority. 

III.  It  is  this  obligation  to  obedience  in  the  subjects,  that 
constitutes  the  whole  force  of  civil  society  and  government,  and 
consequently  the  entire  felicity  of  the  state.  Whoever  there- 
fore rises  against  the  sovereign,  or  makes  an  attack  upon  his  per- 
son or  authority,  renders  himself  manifestly  guilty  of  the  greatest 
crime,  which  a  man  can  commit,  since  he  endeavours  to  subvert 
the  first  foundations  of  the  public  felicity,  in  which  that  of  every 
individual  is  included. 

IV.  But  if  this  maxim  be  true  with  respect  to  individuals, 
my  we  also  apply  it  to  die  whole  body  of  the  nation,  of  whom 
the  sovereign  originally  holds  his  authority  ?  If  the  people  think 
fit  to  resume,  or  to  change  the  form  of  government, why  should 
they  not  be  at  liberty  to  4p  it  ?  Cannot  they,  who  make  a  king, 
also  depose  him  ? 

V.  Let  us  endeavour  to  solve  this  difficulty.  I  therefore  af- 
firm, that  the  people  themselves,  that  is,  the  whole  body  of  the 
nation,  have  not  a  right  to  depose  the  sovereign,  or  to  change 
the  form  of  government,  without  any  other  reason  than  their 
«wn  pleasure,  and  purely  from  inconstancy  or  levity. 


POLITIC  LAW, 


91 


VI.  In  general  the  same  reasons,  which  establish  the  necessi- 
ty of  government  and  supreme  authority  in  society,  also  prove, 
that  the  government  ought  to  be  stable,  and  that  the  people 
should  not  have  the  power  of  deposing  their  sovereigns  whenev- 
er, through  caprice  or  levity,  they  are  inclined  so  to  act,  and 
when  they  have  no  sound  reason  to  change  the  form  of  govern- 
'  ment. 

VII.  Indeed  it  would  be  subverting  all  government,  to  make 
it  depend  on  the  caprice  or  inconstancy  of  the  people.  It  would 
be  impossible  for  the  state  to  be  ever  settled  amidst  those  revo- 
lutions, which  would  expose  it  so  often  to  destruction  ;  for  we 
must  either  grant,  that  the  people  cannot  dispossess  their  sove- 
reign, and  change  the  form  of  government ;  or  we  must  give 
them,  in  this  respect,  a  liberty  without  control. 

VIII.  An  opinion,  which  saps  the  foundation  of  all  authori- 
ty, which  destroys  all  power,  and  consequently  all  society,  can- 
not be  admitted  as  a  principle  of  reasoning,  or  of  conduct  in 
politics. 

IX.  The  law  of  congruity  or  fitness  is  in  this  case  of  the  ut- 
most force.  What  should  we  say  of  a  minor,  who,  without 
any  other  reason,  than  his  caprice,  should  withdraw  from  his 
guardian,  or  change  him  at  pleasure  ?  The  present  case  is  in  point 
the  same.  It  is  with  reason,  that  politicians  compare  the  peo- 
ple to  minors ;  neither  being  capable  of  governing  themselves. 
They  must  be  subject  to  tuition,  and  this  forbids  them  to  with- 
draw from  their  authority,  or  to  alter  the  form  of  government, 
without  very  substantial  reasons. 

X.  Not  only  the  law  of  congruity  forbids  the  people  wan- 
tonly to  rise  against  their  sovereign  or  the  government  5  but  jus- 
tice also  makes  the  same  prohibition. 

XI.  Government  and  sovereignty  are  established  by  mutual 
agreement  betwixt  the  governor  and  the  governed  5  and  justice 
requires  that  people  should  be  faithful  to  their  engagements. 
It  is  therefore  the  duty  of  the  subjects  to  keep  their  word,  and 
religiously  to  observe  their  contract  with  their  sovereign,  so  long 
as  the  latter  performs  his  engagements. 

XII.  Otherwise  the  people  would  do  a  manifest  injustice  to 
the  sovereign,  in  depriving  him  of  a  right,  which  he  has  lawful 


92  THE  PRINCIPLES  OF 

ly  acquired,  which  he  has  not  used  to  their  prejudice,  and  for 
the  loss  of  which  they  cannot  indemnify  him. 

XIII.  But  what  must  we  think  of  a  sovereign,  who,  instead 
of  making  a  good  use  of  his  authority,  injures  his  subjects,  neg- 
lects the  interest  of  the  state,  subverts  the  fundamental  laws, 
drains  the  people  by  excessive  taxes,  which  he  squanders  away 
in  foolish  and  useless  expenses,  &c  ?  Ought  the  person  of  such 
a  king  to  be  sacred  to  the  subjects  ?  Ought  they  patiently  to  sub- 
mit to  all  his  extortions  ?  Or  can  they  withdraw  from  his  au- 
thority ? 

XIV.  To  answer  this  question,  which  is  one  of  the  most  del- 
icate in  politics,  I  observe  that  disaffected,  mutinous,  or  sedi- 
tious subjects,  often  make  things,  highly  innocent,  pass  for  acts 
of  injustice  in  the  sovereign.  The  people  are  apt  to  murmur 
at  the  most  necessary  taxes  -,  others  seek  to  destroy  the  govern- 
ment, because  they  have  not  a  share  in  the  administration.  In 
a  word,  the  complaints  of  subjects  oftener  denote  the  bad  hu- 
mour and  seditious  spirit  of  those,  who  make  them,  than  real 
disorders  in  the  government,  or  injustice  in  those,  who  govern. 

XV.  It  were  indeed  to  be  wished,  for  the  glory  of  sovereigns, 
that  the  complaints  of  subjects  never  had  juster  foundations. 
But  history  and  experience  teach  us,  that  they  are  too  often 
well  founded.  Under  these  circumstances,  what  is  the  duty 
of  subjects  ?  Ought  they  patiently  to  suffer  ?  Or  may  they  re- 
sist their  sovereign  ? 

XVI.  We  must  distinguish  between  the  extreme  abuse  of 
sovereignty,  which  degenerates  manifestly  into  tyranny,  and 
tends  to  the  intire  ruin  of  the  subjects  ;  and  a  moderate  abuse 
of  it,  which  may  be  attributed  to  human  weakness,  rather  than 
to  an  intention  of  subverting  the  liberty  and  happiness  of  the 
people. 

XVII.  In  the  former  case,  I  think  the  people  have  a  right 
to  resist  their  sovereign,  and  even  to  resume  the  sovereignty, 
which  they  have  given  him,  and  which  he  has  abused  to  excess. 
But,  if  the  abuse  be  only  moderate,  it  is  their  duty  to  suffer 
something,  rather  than  to  rise  in  arms  against  their  sovereign. 

XVIII.  This  distinction  is  founded  on  the  nature  of  man, 
and  the  nature  and  end  of  government.    The  people  must  pa« 


POLITIC  LAW.  93 

tiently  bear  the  slight  injustices  of  their  sovereign,  or  the  mod- 
erate abuse  of  his  power,  because  this  is  no  more,  than  a  trib- 
ute due  to  humanity.  It  is  on  this  condition  they  have  invest- 
ed him  with  the  supreme  authority.  Kings  are  men  as  well 
as  others,  that  is  to  say,  liable  to  be  mistaken,  and,  in  some  in- 
stances, to  fail  in  point  of  duty.  Of  this  the  people  cannot 
be  ignorant,  and  on  this  footing  they  have  treated  with  their 
sovereign. 

XIX.  If,  for  the  smallest  faults,  the  people  had  a  right  to 
resist  or  depose  their  sovereign,  no  prince  could  maintain  his 
authority,  and  the  community  would  be  continually  distracted  ; 
such  a  situation  would  be  directly  contrary  both  to  the  end  and 
institution  of  government,  and  of  sovereignty. 

XX.  It  is  therefore  right  to  overlook  the  lesser  faults  of  sov- 
ereigns, and  to  have  a  regard  to  the  laborious  and  exalted  office, 
with  which  they  are  invested  for  our  preservation.  Tacitus 
beautifully  says ;  "  We  must  endure  the  luxury  and  avarice  of 
"  sovereigns,  as  we  endure  the  barrenness  of  a  soil,  storms, 
"  and  other  inconveniences  of  nature.  There  will  be  vices  as 
"  long  as  there  are  men  ;  but  these  are  not  continual,  and  are 
"  recompensed  by  the  intermixture  of  better  qualities."* 

XXI.  But  if  the  sovereign  should  push  things  to  the  last  ex- 
tremity, so  that  his  tyranny  becomes  insupportable,  and  it  ap- 
pears evident,  that  he  has  formed  a  design  to  destroy  the  liber- 
ty of  his  subjects,  then  they  have  a  right  to  rise  against  him, 
and  even  to  deprive  him  of  the  supreme  power. 

XXII.  This  I  prove,  I .  by  the  nature  of  tyranny,  which  of 
itself  degrades  the  sovereign  of  his  dignity.  Sovereignty  al- 
ways supposes  a  beneficent  power.  We  must  indeed  make  some 
allowance  for  the  weakness  inseparable  from  humanity ;  but 
beyond  that,  and  when  the  people  are  reduced  to  the  last  ex- 
tremity, there  is  no  difference  between  tyranny  and  robbery. 
The  one  gives  no  more  right  than  the  other,  and  we  may  law- 
fully oppose  force  to  violence. 

XXIII.  2.  Men  have  established  civil  society  and  govern- 
ment, for  their  own  good  ;    to  extricate  themselves  from  trou- 

*  Quomodo  sterilitatem,  aut  nimios  imbres,  et  camera  naturae  mala,  ita  luxum 
vel  avaritiam  dominantium  tolerate.  Vitia  erunt  donee  homines ;  sed  neque  hsec 
continua,  et  meliorura  intervente  pensantur.     Hist.  lib.  iv.  cap.  Ixxiv,  N.  4. 


94  THE  PRINCIPLES  OF 

bles,  and  to  be  rescued  from  the  evils  of  a  state  of  nature.  But 
it  is  highly  evident,  that,  if  the  people  were  obliged  to  suffer 
every  oppression  from  their  sovereigns,  and  never  to  resist  their 
encroachments,  they  would  be  reduced  to  a  far  more  deplorable 
state,  than  that,  which  they  attempted  to  avoid,  by  the  institu- 
tion of  sovereignty.  It  can  never  surely  be  presumed,  that  this 
was  the  intention  of  mankind. 

XXIV.  3.  Even  a  people,  who  have  submitted  to  an  ab- 
solute government,  have  not  thereby  forfeited  the  right  of  as- 
serting their  liberty,  and  taking  care  of  their  preservation,  when 
they  find  themselves  reduced  to  the  utmost  misery.  Absolute 
sovereignty  in  itself  is  no  more,  than  the  highest  power  of  doing 
good  j  now  the  highest  power  of  procuring  the  good  of  a  per- 
son, and  the  absolute  power  of  destroying  him  at  pleasure,  have 
no  connexion  with  each  other.  Let  us  therefore  conclude,  that 
never  any  nation  had  an  intention  to  submit  their  liberties  to  a 
sovereign  in  such  a  manner,  as  never  to  have  it  in  their  power 
to  resist  him,  not  even  for  their  own  preservation. 

XXV.  "  Suppose,"  says  Grotius,*  "  one  had  asked  those, 
"  who  first  formed  the  civil  laws,  whether  they  intended  to  im- 
"  pose  on  all  the  subjects  the  fatal  necessity  of  dying,  rather  than 
"  taking  up  arms  to  defend  themselves  against  the  unjust  vio- 
"  lence  of  their  sovereign  ?  I  know  not  whether  they  would 
"  have  answered  in  the  affirmative.  It  is  rather  reasonable  to 
"  believe  they  would  have  declared,  that  the  people  ought  not  to 
"  endure  all  manner  of  injuries,  except  perhaps  when  matters  are 
'*  so  situated,  that  resistance  would  infallibly  produce  very  great 
"  troubles  in  the  state,  or  tend  to  the  ruin  of  many  innocent 
"  people." 

XXVI.  We  have  already  proved,f  that  no  person  can  re-: 
nounce  his  liberty  to  such  a  degree,  as  that  here  mentioned.  This 
would  be  selling  his  own  life,  that  of  his  children,  his  religion, 
in  a  word  every  advantage  he  enjoys,  which  it  is  not  certainly 
in  any  man's  power  to  do.  This  may  be  illustrated  by  the  com- 
parison of  a  patient  and  his  physician. 

XXVII.  If  therefore  the  subjects  have  a  right  to  resist  the 

*  Book  I.  chap.  iv.  §  7.  N.  2. 
f  Part  i.  chap.  rii.  N.  %%.  &r. 


POLITIC  LAW.  95 

manifest  tyranny  even  of  an  absolute  prince,  tliey  must,  for  a 
stronger  reason,  have  the  same  power  with  respect  to  a  prince, 
who  has  only  a  limited  sovereignty,  should  he  attempt  to  invade 
the  rights  and  properties  of  his  people.* 

XXVIII.  We  must  indeed  patiently  suffer  the  caprice  and 
austerity  of  our  masters,  as  well  as  the  bad  humor  of  our  fa- 
thers and  mothers ;  but,  as  Seneca  says,  "  though  a  person 
"  ought  to  obey  a  father  in  all  things,  yet  he  is  not  obliged  to 
"  obey  him,  when  his  commands  are  of  such  a  nature,  that  he 
"  ceases  thereby  to  be  a  father." 

XXIX.  But  it  is  here  to  be  observed,  that  when  we  say  the 
people  have  a  right  to  resist  a  tyrant,  or  even  to  depose  him, 
we  ought  not,  by  the  word  people,  to  understand  the  vile  pop- 
ulace or  dregs  of  a  country,  nor  the  cabal  of  a  small  number 
of  seditious  persons,  but  the  greatest  and  most  judicious  part 
of  the  subjects  of  all  orders  in  the  kingdom.  The  tyranny, 
as  we  have  also  observed,  must  be  uotorious,  and  accompanied 
with  the  highest  evidence. 

XXX.  We  may  likewise  affirm,  that,  strictly  speaking,  the 
subjects  are  not  obliged  to  wait  till  the  prince  has  entirely  riv- 
etted  their  chains,  and  till  he  has  put  it  out  of  their  power  to 
resist  him.  It  is  high  time  to  think  of  their  safety,  and  to 
take  proper  measures  against  their  sovereign,  when  they  find, 
that  all  his  actions  manifestly  tend  to  oppress  them,  and  that  he 
is  marching  boldly  on  to  the  ruin  of  the  state. 

XXXI.  These  are  truths  of  the  last  importance.  It  is  high- 
ly proper  they  should  be  known,  not  only  for  the  safety  and  hap- 
piness of  nations,  but  also  for  the  advantage  of  good  and  wise 
kings. 

XXXII.  They,  who  are  well  acquainted  with  the  frailty  of 
human  nature,  are  always  diffident  of  themselves ;  and,  wish- 
ing only  to  discharge  their  duty,  are  contented  to  have  bounds 
set  to  their  authority,  and  by  such  means  to  be  hindered  from 
doing  what  they.ought  to  avoid.  Taught  by  reason  and  experi- 
ence, that  the  people  love  peace  and  good  government,  they  will 
never  be  afraid  of  a  general  insurrection,  so  long  as  they  take 
care  to  govern  with  moderation,  and  hinder  their  officers  from 
committing  injustice. 

*  Grotius  on  the  Right  of  War  and  Peace,  book  i.  chap.  iv.  §  8. 


96  THE  PRINCIPLES  OF 

XXXIII.  However  the  abettors  of  despotic  power  and  pas- 
sive obedience  start  several  difficulties  on  this  subject. 

First  Objection.  A  revolt  against  the  supreme  power  in- 
cludes a  contradiction  ;  for  if  this  power  is  supreme,  there  is 
none  superior  to  it.  By  whom  then  shall  it  be  judged  ?  If  the 
sovereignty  still  inheres  in  the  people,  they  have  not  transferred 
their  right  ;  and  if  they  have  transferred  it  they  are  no  longer 
masters  of  it. 

Answer.  This  difficulty  supposes  the  point  in  question, 
namely,  that  the  people  have  divested  themselves  so  far  of  their 
liberty,  that  they  have  given  full  power  to  the  sovereign  to 
treat  them  as  he  pleases,  without  having  in  any  case  reserved  to 
themselves  the  power  of  resisting  him.  This  is  what  no  peo- 
ple ever  did,  nor  ever  could  do.  There  is  therefore  no  con- 
tradiction in  the  present  case.  A  power,  given  for  a  certain 
end,  is  limitted  by  that  very  end.  The  supreme  power  ac- 
knowledges none  above  itself,  so  long  as  the  sovereign  has  not 
forfeited  his  dignity.  But  if  he  has  degenerated  into  a  tyrant, 
he  can  no  longer  claim  a  right,  which  he  has  forfeited  by  his 
own  misconduct. 

XXXIV.  Second  Objection.  But  who  shall  judge  whether 
the  ptince  performs  his  duty,  or  whether  he  governs  tyrannic- 
ally ?   Can  the  people  be  judges  in  their  own  cause  ? 

Answer.  'It  certainly  belongs  to  those,  who  have  given  any 
person  a  power,  which  he  had  not  of  himself,  to  judge  wheth- 
er he  uses  it  agreeably  to  the  end,  for  which  it  was  conferred 
on  him. 

XXXV.  Third  Objection.  We  cannot  without  imprudence 
grant  this  right  of  judging  to  the  people.  Political  affairs  a:.- 
not  adapted  to  the  capacity  of  the  vulgar,  but  are  sometimes  ot 
so  delicate  a  nature,  that  even  persons  of  the  best  sense  cannot 
form  a  right  judgment  of  them. 

Answer.  In  dubious  cases,  the  presumption  ought  ever  to  be 
in  favor  of  the  sovereign,  and  obedience  is  the  duty  of  sub- 
jects. They  ought  ever  to  bear  a  moderate  abuse  of  sovereign- 
ty. But  in  cases  of  manifest  tyranny,  every  one  is  in  a  condi- 
tion to  judge,  whether  he  is  highly  injured  or  not. 

XXXVI.  Fourth  objection.  But  do  we  not   expose  the  state 


POLITIC  LAW.  tf 

to  perpetual  revolutions,  to  anarchy,  and  to-certain  ruin,  by  mak- 
ing the  supreme  authority  depend  on  the  opinion  of  the  peo- 
ple, and  by  granting  them  liberty  to  rise  on  particular  occasions 
against  their  sovereign  ? 

Answer.  This  objection  would  be  of  some  force,  if  we  pre- 
tended, that  the  people  had  a  right  to  oppose  their  sovereign, 
or  to  change  the  form  of  government,  through  levity  or  ca- 
price, or  even  for  a  moderate  abuse  of  the  supreme  power. 
But  no  inconvenience  will  ensue,  while  the  subjects  only  use 
this  right  with  all  the  precautions,  and  in  the  circumstances  a- 
bove  supposed.  Besides  experience  teaches  us,  that  it  is  very 
difficult  to  prevail  on  a  nation  to  change  a  government,  to  which 
they  have  been  accustomed.  We  are  apt  to  overlook  not  only 
slight,  but  even  very  considerable  mistakes  in  our  governors. 

XXXVII.  Our  hypothesis  does  not  tend  more  than  any  oth- 
er, to  excite  disturbances  in  a  state  ;  for  a  people,  oppressed  by 
a  tyrannical  government,  will  rebel  as  frequently,  as  those,  who 
live  under  established  laws.  Let  the  abettors  of  despotic 
power  cry  up  their  prince  as  much,  as  they  please,  let  them  say 
the  most  magnificent  things  of  his  sacred  person,  yet  the  people, 
reduced  to  the  last  misery,  will  trample  those  specious  reasons 
under  foot,  as  soon  as  they  can  do  it  with  an  appearance  of 
success. 

XXXVIII.  In  fine,  though  the  subjects  might  abuse  the  lib- 
erty, which  we  grant  them,  yet  less  inconvenience  would  arise 
from  this,  than  from  allowing  all  to  the  sovereign,  so  as  to  let  a 
whole  nation  perish,  rather  than  grant  it  the  power  of  checking 
the  iniquity  of  its  governors. 

CHAP.  VIII. 

Of  the  duty  of  sovereigns. 

I.  JL  HERE  is  a  sort  of  commerce,  or  reciprocal  return  of 
the  duties  of  the  subjects  to  the  sovereign,  and  of  his  to  them. 
Having  treated  of  the  former,  it  remains  that  we  take  a  view  of 
the  latter. 

II.  From  what  has  been  hitherto  explained  concerning  the 

N 


98  THE  PRINCIPLES  OF 

nature  of  sovereignty,  its  end,  extent,  and  boundaries,  the  duty 
of  sovereigns  may  easily  be  gathered.  But  since  this  is  an  af- 
fair of  the  last  importance,  it  is  necessary  to  say  something  more 
particular  on  it,  and  to  collect  the  principal  heads  of  it  as  it  were 
into  one  view. 

III.  The  higher  a  sovereign  is  raised  above  the  level  of  other 
men,  the  more  important  are  his  duties  ;  if  he  can  do  a  great 
deal  of  good,  he  can  also  do  a  great  deal  of  mischief.  It  is  on 
the  good  or  evil  conduct  of  princes,  that  the  happiness  or  mise- 
ry of  a  whole  nation  or  people  depends.  How  happy  is  the 
situation,  which,  on  all  instances,  furnishes  occasions  of  doing 
good  to  so  many  thousands !  but  at  the  same  time  how  dange- 
rous is  the  post,  which  exposes  every  moment  to  the  injuring  of 
millions ;  besides  the  good,  which  princes  do,  sometimes  ex- 
tends to  the  most  remote  ages  •,  as  the  evils  they  commit  are 
multiplied  to  latest  posterity.  This  sufficiently  discovers  the 
importance  of  their  duties. 

IV.  In  order  to  have  a  proper  knowledge  of  the  duty  of  sove- 
reigns, we  need  only  attentively  consider  the  nature  and  end  of 
civil  societies,  and  the  exercise  of  the  different  parts  of  sove- 
reignty. 

V.  r.  The  first  general  duty  of  princes  is  carefully  to  in- 
form themselves  of  every  thing,  that  falls  under  the  complete 
discharge  of  their  trust ;  for  a  person  cannot  well  acquit  him- 
self in  that,  which  he  has  not  first  rightly  learnt. 

VI.  It  is  a  great  mistake  to  imagine,  that  the  knowledge  of 
government  is  an  easy  affair  j  on  the  contrary  nothing  is  more 
difficult,  if  princes  would  discharge  their  duty.  "Whatever  tal- 
ents or  genius  they  may  have  received  from  nature,  this  is  an 
employment,  that  requires  the  whole  man.  The  general  rules 
of  governing  well  are  few  in  number  ;  but  the  difficulty  is  to 
make  a  just  application  of  them  to  times  and  circumstances ; 
and  this  demands  the  greatest  efforts  of  diligence  and  human 
irudence. 

VII.  2.  When  a  pi-ince  is  once  convinced  of  the  obligation 
he  is  under  to  inform  himself  exactly  of  all,  that  is  necessary 
for  tire  discharge  of  his  trust,  and  of  the  difficulty  of  getting 
"his  information,  he  will  begin  with  removing  every  obstacle, 


POLITIC  LAW.  99 

which  may  oppose  it.  At  first  it  is  absolutely  necessary,  that 
princes  should  retrench  their  pleasures  and  useless  diversions,  so 
far  as  these^may  be  a  hindrance  to  the  knowledge  and  practice 
of  their  duty.  Then  they  ought  to  endeavour  to  have  wise, 
prudent,  and  experienced  persons  about  them  ;  and  on  the  con- 
trary to  remove  flatterers,  buffoons,  and  others,  whose  whole 
merit  consists  in  things,  that  are  frivolous  and  unworthy  the 
attention  of  a  sovereign.  Princes  ought  not  to  choose  for  fa- 
vorites those,  who  are  most  proper  to  divert  them,  but  such  as 
are  most  capable  of  governing  the  state. 

VIII.  Above  all  things,  they  cannot  guard  too  much  against 
flattery.  No  human  condition  has  so  great  an  occasion  for  true 
and  faithful  advice,  as  that  of  kings.  And  yet  princes,  corrupt- 
ed by  flattery,  take  every  thing,  that  is  free  and  ingenuous,  to 
be  harsh  and  austere.  They  are  become  so  delicate,  that  eve- 
ry thing,  which  is  not  an  adulation,  offends  them.  But  noth- 
ing ought  they  to  be  so  greatly  afraid  of,  as  this  very  adula- 
tion ;  since  there  are  no  miseries,  into  which  they  may  not  be 
hurried  by  its  poisonous  insinuation.  On  the  contrary,  the 
prince  is  happy,  even  if  he  has  but  a  single  subject,  who  is  so 
generous  as  to  speak  the  truth  to  him ;  such  a  man  is  the  treas- 
ure of  the  state.  Prudent  sovereigns,  who  have  their  true  in- 
terests at  heart,  ought  continually  to  imagine,  that  court  syco- 
phants only  regard  themselves,  and  not  their  master ;  whereas  a 
sincere  counsellor,  as  it  were,  forgets  himself,  and  thinks  only 
on  the  advantnge  of  his  master. 

IX.  3.  Princes  ought  to  use  all  possible  application  to  un- 
derstand the  constitution  of  the  state,  and  the  natural  temper  of 
their  subjects.  They  ought  not  in  this  respect  to  be  contented 
with  a  general  and  superficial  knowledge.  They  should  enter 
into  particulars,  and  carefully  examine  into  the  constitution  of 
the  state,  into  its  establishment  and  power,  whether  it  be  old 
or  of  late  date,  successive  or  elective,  acquired  by  legal  methods 
or  by  arms ;  they  should  also  see  how  far  this  jurisdiction 
reaches,  what  neighbours  are  about  them,  xfhat  allies,  and  what 
strength,  and  what  conveniences  -the  state  is  provided  with. 
For  according  to  these  considerations  the  scepter  must  be  sway- 
ed, and  the  rider  must  take  care  to  keep  a  stiffer  or  slacker  rein 


I oq  THE  PRINCIPLES  OF 

X.  4.  Sovereigns  ought  also  to  endeavour  to  excel  in  such  vir- 
tues, as  are  most  necessary  to  support  the  weight  of  so  impor- 
tant a  charge,  and  to  regulate  their  outward  behaviour  in  a  man- 
ner worthy  of  their  rank  and  dignity. 

XI.  We  have  already  shown,  that  virtue  in  general  consists  in 
that  strength  of  mind,  which  enables  us  not  only  to  consult  right 
reason  on  all  occasions,  but  also  to  follow  her  counsels  with 
ease,  and  effectually  to  resist  every  thing  capable  of  giving  us 
a  contrary  bias.  This  single  idea  of  virtue  is  sufficient  to  show 
bow  necessary  it  is  to  all  men.  But  none  have  more  duties  to 
fulfil,  norfe  are  more  exposed  to  temptation,  than  sovereigns ;  and 
none  of  course  have  a  greater  necessity  for  the  assistance  of  vir- 
tue.  Besides,  virtue  in  princes  has  this  advantage,  that  it  is  the 
surest  method  of  inspiring  their  subjects  with  the  like  principles. 
For  this  purpose  they  need  only  show  the  way.  The  example 
of  the  prince  has  a  greater  force  than  the  law.  It  is  as  it  were 
a  living  law,  of  more  efficacy  than  precept.  But  to  descend 
to  particulars. 

XII.  The  virtues  most  necessary  to  sovereigns  are,  1.  Piety, 
which  is  certainly  the  foundation  of  all  other  virtues  ;  but  it 
must  be  a  solid  and  rational  piety,  free  from  superstition  and 
bigotry.  In  the  high  situation  of  sovereigns,  the  only  motive, 
which  can  most  surely  induce  them  to  the  discharge  of  their 
duty,  is  the  fear  of  God.  Without  that  they  will  soon  run  in- 
to every  vice,  which  their  passions  dictate  ;  and  the  people  will 
become  the  innocent  victims  of  their  pride,  ambition,  avarice, 
and  cruelty.  On  the  contrary,  we  may  expect  every  thing,  that 
is  good,  from  a  prince,  who  fears  and  respects  God,  as  a  su- 
preme Being,  on  whom  he  depends,  and  to  whom  he  must  one 
day  give  an  account  of  his  administration.  Nothing  can  be  so 
powerful  a  motive  as  this  to  engage  princes  to  perform  their  du- 
ty, nothing  can  so  well  cure  them  of  that  dangerous  mistake, 
that,  being  above  other  men,  they  may  act  as  absolute  lords,  as 
if  they  were  not  to  render  an  accouut  of  their  conduct,  and  be 
judged  in  their  turn,  after  having  passed  sentence  on  others. 

XIII.  2.  The  love  of  Equity  and  Justice.  The  principal  end 
a  prince  was  made  for  is  to  take  care,  that  every  one  should 
have  his  right.     This  ought  to  engage  him  to  study  not  only 


POLITIC  LAW.  101 

the  science  of  those  great  civilians,  who  ascend  to  the  first  prin- 
ciples of  law,  which  regulate  human  society,  and  are  the  basis 
as  it  were  of  government  and  politics  ;  but  also  that  part  of  the 
law,  which  descends  to  the  affairs  of  particular  persons.  This 
branch  is  generally  left  for  the  gentlemen  of  the  long  robe,  and  not 
admitted  into  the  education  of  princes,  though  they  are  every- 
day to  pass  judgment  upon  the  fortunes,  liberties,  lives,  honor, 
and  reputation  of  their  subjects.  Princes  are  continually  talked 
to  of  valour  and  liberality  ;  but  if  justice  do  not  regulate  these 
two  qualities,  they  degenerate  into  the  most  odious  vices. 
"Without  justice  valour  does  nothing  but  destroy  ;  and  liberali- 
ty is  only  a  foolish  profuseness.  Justice  keeps  all  in  order,  and 
contains  within  bounds  him,  who  distributes  it,  as  well  as  those, 
to  whom  it  is  distributed. 

XIV.  3.  Voluur.  But  it  must  be  set  in  motion  by  justice,  and 
conducted  by  prudence.  A  prince  should  expose  his  person  to 
the  greatest  perils,  as  often  as  it  is  necessary.  He  dishonors 
himself  more  by  being  afraid  of  danger  in  time  of  war,  than  by 
never  taking  the  field.  The  courage  of  him,  who  commands 
Others,  ought  not  to  be  dubious  ;  but  neither  ought  he  to  run 
headlong  into  danger.  Valour  can  no  longer  be  a  virtue,  than 
it  is  guided  by  prudence  ;  without  this  it  is  a  stupid  contempt 
of  life,  and  a  brutal  ardor.  Inconsiderate  valour  is  always  in- 
secure. He,  who  is  not  master  of  himself  in  dangers,  is  rath- 
er fierce  than  brave  ;  if  he  does  not  fly,  he  is  at  least  confound- 
ed. He  loses  that  presence  of  mind,  which  would  be  necessa- 
ry for  him  to  give  proper  orders,  to  take  advantage  of  opportu- 
nities, and  to  rout  the  enemy.  The  true  way  of  finding  glory 
is  calmly  to  wait  for  the  favorable  occasion.  Virtue  is  the 
more  revered,  as  she  shows  herself  plain,  modest,  and  averse  to 
pride  and  ostentation.  In  proportion  as  the  necessity  of  expos- 
ing yourself  to  danger  augments,  your  foresight  and  courage 
ought  also  to  increase. 

XV.  4.  Another  virtue,  very  necessary  in  princes,  is  to  be 
extremely  reserved  in  discovering  their  thoughts  and  designs. 
This  is  evidently  necessary  to  those,  who  are  concerned  in  gov- 
ernment. It  includes  a  wise  diffidence,  and  an  innocent  dis-» 
simulation. 


io3  THE  PRINCIPLES  OF 

XVI.  5.  A  prince  must,  above  all  things,  accustom  himself 
to  moderate  his  desires.  For  as  lie  has  the  ,power  of  gratifying 
them,  if  he  once  gives  way  to  them,  he  will  run  to  the  great- 
est excess,  and,  by  destroying  his  subjects,  will  at  last  complete 
his  own  ruin.  In  order  to  form  himself  to  this  moderation, 
nothing  is  more  proper,  than  to  accustom  himself  to  patience. 

This  is  the  most  necessary  of  all  virtues  for  those,  who  are 
to  command.  A  man  must  be  patient  to  become  master  of 
himself  and  others.  Impatience,  which  seems  to  be  a  vigor- 
ous exertion  of  the  soul,  is  only  a  weakness  and  inability  of 
suffering  pun.  He,  who  cannot  wait  and  suffer,  is  like  a  person, 
who  cannot  keep  a  secret.  >  Both  want  resolution  to  contain 
themselves.  The  more  power  an  impatient  man  has,  the  more 
fatal  his  impatience  will  be  to  him.  He  will  not  wait ;  he  gives 
himself  no  time  to  judge  ;  he  forces  every  thing  to  please  him- 
self ;  he  tears  off  the  boughs,  to  gather  the  fruit,  before  it  is 
ripe  ;  he  breaks  down  the  gate, s,  rather  than  stay  till  they  are 
opened  to  him. 

XVII.  6.  Goodness  and  Clemency  are  also  virtues  very  neces- 
sary to  a  prince.  His  office  is  to  do  good,  and  it  is  for  this 
end  the  supreme  power  is  lodged  in  his  hands.  It  is  also  prin- 
cipally by  this,  that  he  ought  to  distinguish  himself. 

XVIII.  7.  Liberality,  well  understood  and  well  applied,  is  so 
much  the  more  essential  to  a  prince,  as  avarice  is  a  disgrace 
to  a  person,  whom  it  costs  almost  nothing  to  be  liberal.  To 
take  it  exactly,  a  king,  as  a  king,  has  nothing  properly  his  own  ; 
for  he  owes  his  very  self  to  others.  But,  on  the  other  hand, 
no  person  ought  to  be  more  careful  in  regulating  the  exercise 
of  this  noble  virtue.  It  requires  great  circumspection,  and  sup- 
poses, in  the  prince,  a  just  discernment  and  a  good  taste  to  know 
how  to  bestow  and  dispense  favors  on  proper  persons.  He 
ought,  above  all  things,  to  use  this  virtue  for  rewarding  merit 
and  virtue. 

XIX.  But  liberality  has  its  bounds,  even  in  the  most  opulent 
princes.  The  state  may  be  compared  to  a  family.  The  want 
of  foresight,  profusion  of  treasure,  and  the  voluptuous  incli- 
nation of  princes,  who  are  masters  of  it,  do  more  mischief,  than 
=he  most  skilful  ministers  can  repair. 


POLITIC  LAW.  io$ 

XX.  To  reimburse  his  treasures, -squandered  away  without 
necessity,  and  often  in  criminal  excesses,  he  must  have  recourse 
to  expedients,  which  are  fatal  to  the  subjects  and  the  state. 
He  loses  the  hearts  of  the  people,  and  causes  murmurs  and 
discontents,  which  are  ever  dangerous,  and  of  which  an  enemy 
may  take  advantage.  These  are  inconveniences,  that  even 
common  sense  might  point  out,  if  the  strong  propensity  to 
pleasure,  and  the  intoxication  of  power,  did  not  often  extin- 
guish the  light  of  reason  in  princes.  To  what  cruelty  and  in- 
justice did  not  the  extravagant  profusions  of  Nero  carry  him  ? 
A  prudent  economy,  on  the  contrary,  supplies  the  deficiencies, 
of  the  revenue,  maintains  families  and  states,  and  preserves 
them  in  a  flourishing  condition.  By  economy  princes  not  on- 
ly have  money  in  time  of  need,  but  also  possess  the  hearts  of 
their  subjects,  who  freely  open  their  purses  upon  any  unforeseen 
emergency,  when  they  see  that  the  prince  has  been  sparing  in 
his  expenses  *,  the  contrary  happens  when  he  has  squandered 
away  his  treasures. 

XXI.  This  is  a  general  idea  of  the  virtues  most  necessary  to 
a  sovereign,  besides  those,  which  are  common  to  him  with  pri- 
vate people,  and  of  which  some  are  included  even  in  those,  we 
have  been  mentioning.  Cicero  follows  almost  the  same  ideas 
in  the  enumeration  he  makes  of  the  royal  virtues.* 

XXII.  It  is  by  the  assistance  of  these  virtues,  of  which  we 
here  have  given  an  idea,  that  sovereigns  are  enabled  to  apply 
themselves  with  success  to  the  functions  of  government,  and  to 
fulfil  the  different  duties  of  it.  Let  us  say  something  more 
particular  on  the  actual  exercise  of  those  duties. 

XXIII.  There  is  a  general  rule,  which  includes  all  the  du- 
ties of  a  sovereign,  and  by  which  he  may  easily  judge  how  to 
proceed  under  every  circumstance.  Let  the  safety  of  the  people 
be  the  supreme  law.  This  ought  to  be  the  chief  end  of  all  hi$ 
actions.  The  supreme  authority  has  been  conferred  upon  him 
with  this  view  ;  and  the  fulfilling  of  it  is  the  foundation  of  hi* 
right  and  power.  The  prince  is  properly  the  servant  of  the 
public.       He  ought  as  it  were  to  forget  himself,  in   order  to 

*  Fortem,  justum,  severum,  gravem,  magnanimum,  largum.beneficum,  liber- 
alem  dUi,  hsc  sunt  regis  laudes.    Qrat.  pro  rtge  Dejofaro,  cap.  9, 


104  THE  PRINCIPLES  OF 

think  only  on  the  advantage  and  good  of  those,  whom  he  gov- 
erns. He  ought  not  to  look  upon  any  thing  as  useful  to 
himself,  which  is  not  so  to  the  state.  This  was  the  idea 
of  the  heathen  philosophers.  They  defined  a  good  prince 
one,  who  endeavours  to  render  his  subjects  happy  •,  and  a  ty- 
rant, on  the  contrary,  one,  who  aims  only  at  his  own  private 
advantage. 

XXIV.  The  very  interest  of  the  sovereign  demands,  that  he 
should  direct  all  his  actions  to  the  public  good.  By  such  a 
conduct  he  wins  the  hearts  of  his  subjects*  and  lays  the  foun- 
dation of  solid  happiness  and  true  glory. 

XXV.  Where  the  government  is  most  despotic,  there  sove- 
reigns are  least  powerful.  They  ruin  every  thing,  and  are  the 
sole  possessors  of  the  whole  country ;  but  then  the  state  lan- 
guishes, because  it  is  exhausted  of  men  and  money  ;  and  this 
first  loss  is  the  greatest  and  most  irreparable.  His  subjects 
seem  to  adore  him,  and  to  tremble  at  his  very  looks.  But  see 
what  will  be  the  consequence  upon  the  least  revolution  ;  then 
we  find,  that  this  monstrous  power,  pushed  to  excess,  cannot 
long  endure,  because  it  has  no  resource  in  the  hearts  of  the 
people.  On  the  first  blow,  the  idol  tumbles  down,  and  is 
trampled  under  foot.  The  king,  who,  in  his  prosperity,  found 
not  a  man,  who  durst  tell  him  the  truth,  shall  not  find  one  in 
his  adversity,  that  will  vouchsafe  either  to  excuse,  or  defend 
him  against  his  enemies.  It  is  therefore  equally  essential  to  the 
happiness  of  the  people  and  of  sovereigns,  that  the  latter  should 
follow  no  other  rule  in  the  manner  of  governing,  than  that  of 
the  public  welfare. 

XXVI.  It  is  not  difficult,  from  this  general  rule,  to  de- 
duce those  of  a  more  particular  nature.  The  functions  of  the 
government  relate  either  to  the  domestic  interests  of  the  state, 
or  to  its  foreign  concerns. 

XXVII.  As  for  the  domestic  interests  of  the  state,  the  first 
care  of  the  sovereign  ought  to  be,  i.  to  form  his  subjects  to 
good  manners.  For  this  purpose  the  duty  of  supreme  rul- 
ers is,  not  only  to  prescribe  good  laws,  by  which  every  one 
may  know  how  he  ought  to  behave,  in  order  to  promote  the 
public  good  ;  but  especially  to  establish  the  most  perfect  man- 


POLITIC  LAW.  105 

tier  of  public  instruction,  and  of  the  education  of  youth.  This 
is  the  only  method  of  making  the  subjects  conform  to  the  laws 
both  by  reason  and  custom,  rather  than  through  fear  of  punish- 
ment. 

XXVIII.  The  first  care  of  a  prince  therefore  ought  to  be  to 
erect  public  schools  for  the  education  of  children,  and  for 
training  them  betimes  to  wisdom  and  virtue.  Children  are  the 
hope  and  strength  of  a  nation.  It  is  too  late  to  correct  them 
when  they  are  spoiled.  It  is  infinitely  better  to  prevent  the 
evil,  than  to  be  obliged  to  punish  it.  The  king,  who  is  the 
father  of  all  his  people,  is  more  particularly  the  father  of  all  the 
youth,  who  are  as  it  were  the  flower  of  the  whole  nation. 
And  as  it  is  in  the  flower,  that  fruits  are  prepared,  so  it  is  one 
of  the  principal  duties  of  the  sovereign  to  take  care  of  the  edu- 
cation of  youth,  and  the  instruction  of  his  subjects,  to  plant  the 
principles  of  virtue  early  in  their  minds,  and  to  maintain  and 
confirm  them  in  that  happy  disposition.  It  is  not  laws  and  or- 
dinances, but  good  morals,  that  properly  regulate  the  state. 

£htid  leges  sine  moribus 
Vanx  projiciunt  P 

Hor.  lib.  Hi.  Od.  24.  v.  35,  36. 
And  what  are  laws  unless  obey'd 

By  the  same  moral  virtues  they  were  made  ?  Francis. 
Those,  who  have  had  a  bad  education,  make  no  scruple  to 
violate  the  best  political  institutions  \  whereas  they,  who  have 
been  properly  trained  up,  cheerfully  conform  to  all  good  institu- 
tions. In  fine,  nothing  is  more  conducive  to  so  good  an  end 
in  states,  than  to  inspire  the  people  in  the  earlier  part  of  life 
with  the  principles  of  the  Christian  religion,  purged  from  all 
human  invention.  For  this  religion  includes  the  most  perfect 
scheme  of  morality,  the  maxims  of  which  are  extremely  well 
adapted  for  promoting  the  happiness  of  society. 

XXIX.  2.  The  sovereign  ought  to  establish  good  laws  for  the 
settling  of  such  affairs,  as  the  subjects  have  most  frequent  occa- 
sion to  transact  with  each  other.  These  laws  ought  to  be  just, 
equitable,  clear,  without  ambiguity  and  contradiction,  useful,  ac- 
commodated to  the  condition  and  the  genius  of  the  people,  at 
least  so  far,  as  the  good  of  tjie  state  will  permit,  that,  by  their 

O 


io6  THE  PRINCIPLES  OF 

means,  differences  may  be  easily  determined.      But  they  ar6  not 
Co  be  multiplied  without  necessity. 

XXX.  I  said,  that  laws  ought  to  be  accommodated  to  the  con- 
dition and  genius  of  the  people  ;  and  for  this  reason  I  have  before 
observed,  that  the  sovereign  ought  to  be  thoroughly  instructed 
in  this  article ;  otherwise  one  of  these  two  inconveniences  must 
happen,  either  that  the  laws  are  not  observed,  and  then  it  be- 
comes necessary  to  punish  an  infinite  number  of  people,  while 
the  state  reaps  no  advantage  from  it  j  or  that  the  authority  of 
the  laws  is  despised,  and  then  the  state  is  on  the  brink  of  des- 
truction. 

XXXI.  I  mentioned  also,  that  laws  ought  not  to  be  multiplied 
without  necessity  ,•  for  this  would  only  tend  to  lay  snares  For  rhe 
subject,  and  expose  him  to  inevitable  punishments,  without  any 
advantage  to  the  society.  In  fine  it  is  of  great  importance  to 
regulate  what  relates  to  the  administration  and  ordinary  forms 
of  justice,  so  that  every  subject  may  have  it  in  his  power  to  re- 
cover his  right,  without  losing  much  time,  or  being  at  a  great 
expense. 

XXXII.  3.  It  would  be  of  no  use  to  make  good  laws,  if 
people  were  suffered  to  violate  them  with  impunity.  Sovereigns 
ought  therefore  to  see  them  properly  executed,  and  to  punish 
the  delinquents  without  exception  of  persons,  according  to  the 
quality  and  degree  of  the  offence.  It  is  even  sometimes  proper 
to  punish  severely  at  first.  There  are  circumstances,  in  which 
it  is  clemency  to  make  such  early  examples,  as  shall  stop  the 
course  of  iniquity.  But  what  is  chiefly  necessary,  and  what 
justice  and  the  public  gooi  absolutely  require,  is,  that  the  se- 
verity of  the  laws  be  exercised  not  only  upon  the  subjects  of 
moderate  fortune  and  condition,  but  also  upon  the  wealthy  and 
powerful.  It  would  be  unjust,  that  reputation,  nobility,  and 
riches,  should  authorise  any  one  to  insult  those,  who  are  desti- 
tute of  these  advantages.  The  populace  are  often  reduced 
by  oppression  to  despair,  and  their  fury  at  last  throws  the  state 
into  convulsions. 

XXXIII.  4.  Since  men  first  joined  in  civil  societies  to 
screen  themselves  from  the  injuries  and  malice  of  others,  and 
£0  procure  all  the  sweets  and  pleasures,  which  can  render  life 


POLITIC  LAW.  10; 

commodious  and  happy  ;  the  sovereign  is  obliged  to  hinder  the 
subjects  from  wronging  each  other,  to  maintain  order  and  peace 
in  the  community  by  a  strict  execution  of  the  laws,  to  the  end, 
that  his  subjects  may  obtain  the  advantages,  which  mankind 
c*n  reasonably  propose  to  themselves  by  joining  in  society. 
When  the  subjects  are  not  kept  within  rule,  their  perpetual  in- 
tercom" e  easily  furnishes  them  with  opportunities  of  injuring 
one  another.  But  nothing  is  more  contrary  to  the  nature  and 
end  of  civil  government,  than  to  permit  subjects  to  do  them- 
selves justice,  and,  by  their  own  private  force,  to  revenge  the 
injuries  they  think  they  have  suffered.  We  shall  here  add  a 
beautiful  passage  from  Mr.  de  la  Bruiere  upon  this  subject.* 
"  What  would  it  avail  me,  or  any  of  my  fellow  subjects,  that 
"  my  sovereign  was  successful  and  crowned  with  glory,  that 
'*  my  country  was  powerful  and  the  terror  of  neighbouring 
"  nations,  if  I  were  forced  to  lead  a  melancholy  and  miserable 
"  life  under  the  burthen  of  oppression  and  indigence  ?  If, 
"  while  I  was  secured  from  the  incursions  of  a  foreign  enemy, 
"  I  found  myself  exposed  at  home  to  the  sword  of  an  assassin, 
ic  and  was  less  in  danger  of  being  robbed  or  massacred  in  the 
"  darkest  nights,  and  in  a  thick  forest,  than  in  the  public  streets  ? 
"  If  safety,  cleanliness,  and  good  order,  had  not  rendered  liv- 
u  ing  in  towns  so  pleasant,  and  had  not  only  furnished  them 
"  with  the  necessaries,  but  moreover  with  all  the  sweets  and 
u  conveniences  of  life  ?  If  being  weak  and  defenceless,  I  were 
"  encroached  upon  in  the  country,  by  every  neighbouring  great 
"  man  ?  If  so  good  a  provision  had  not  been  made  to  protect 
"  me  against  his  injustice  ?  If  I  had  not  at  hand  so  many,  and 
"  such  excellent  masters,  to  educate  my  children  in  those  arts 
"  and  sciences,  which  will  one  day  make  their  fortune  ?  If  the 
"  conveniency  of  commerce  had  not  made  good,  substantial  stuffs 
"  for  my  cloathing,  and  wholesome  food  for  my  nourishment* 
"  both  plentiful  and  cheap  ?  If,  to  conlude,  the  care  of  my  sov- 
"  ereign  had  not  given  me  reason  to  be  as  well  contented  with 
*'  my  fortune,  as  his  princely  virtues  must  needs  make  hirr. 
(f  with  his  ? 

XXXIV.   5.  Since   a  prince  can  neither  see   nor  do  every 
thing  himself,  he  must  have  the  assistance  of  ministers.     But, 

•  Characters  and  manners  of  the  present  age,  chap.  x.  of  the  sovereign. 


i©8  THE  PRINCIPLES  OF 

as  these  derive  their  whole  authority  from  their  master,  all  the 
good  or  evil  they  do  is  finally  imputed  to  him.  It  is  therefore 
the  duty  of  sovereigns  to  choose  persons  of  integrity  and  ability 
for  the  employments,  with  which  they  entrust  them.  They 
ought  often  to  examine  their  conduct,  and  to  punish  or  recom- 
pense them,  according  to  their  merits.  In  fine,  they  ought 
never  to  refuse  to  lend  a  patient  ear  to  the  humble  remonstranc- 
es and  complaints  of  their  subjects,  when  they  are  oppressed 
and  trampled  on  by  ministers  and  subordinate  magistrates. 

XXXV.  6.  With  regard  to  subsidies  and  taxes,  since  the 
subjects  are  not  obliged  to  pay  them,  bat  as  they  are  necessary 
to  defray  the  expenses  of  the  state,  in  war  or  peace  ;  the  sove-. 
reign  ought  to  exact  no  more,  than  the  public  necessities, 
or  the  signal  advantage  of  the  state,  shall  require.  He  ought 
also  to  see,  that  the  subjects  be  incommoded  as  little  as  possi-i 
ble  by  the  taxes  laid  upon  them.  There  should  be  a  just 
proportion  in  the  tax  of  every  individual,  and  there  must  be  no 
exception  or  immunity,  which  may  turn  to  the  disadvantage  of 
others.  The  money  collected  ought  to  be  laid  out  in  the  ne- 
cessities of  the  state,  and  not  wasted  in  luxury,  debauchery, 
foolish  largesses,  or  vain  magnificence.  Lastly  the  expenses 
ought  to  be  proportioned  to  the  revenue. 

XXXVI.  7.  It  is  the  duty  of  a  sovereign  to  draw  no  further 
supplies  from  his  subjects,  than  he  really  stands  in  need  of. 
The  wealth  of  the  subjects  forms  the  strength  of  the  state,  and 
the  advantage  of  families  and  individuals.  A  prince  therefore 
ought  to  neglect  nothing,  that  can  contribute  to  the  preservation 
and  increase  of  the  riches  of  his  people.  For  this  purpose  he  should 
see,  that  they  draw  all  the  profit  they  can  from  their  lands  and 
waters,  and  keep  themselves  always  employed  in  some  industri- 
ous exercise  or  other.  He  ought  to  further  and  promote  the 
mechanic  arts,  and  give  all  possible  encouragement  to  commerce* 
It  is  likewise  his  duty  to  bring  his  subjects  to  a  frugal  method 
of  living  by  good  sumptuary  laws,  which  may  forbid  superflu- 
ous expenses,  and  especially  those,  by  which  the  wealth  of  the 
natives  is  translated  to  foreigners. 

XXXVII.  8.  Lastly,  it  is  equally  the  interest  and  duty  of  a 
supreme  governor  to  guard  against  factions  and  cabals,  whence 


POLITIC  LAW.  109 

seditions  and  civil  wars  easily  arise.  But  above  all  he  ought  to 
take  care,  that  none  of  his  subjects  place  a  greater  dependance, 
even  under  the  pretext  of  religion,  or  any  other  power,  either 
within  or  without  the  realm,  than  on  his  lawful  sovereign.  This 
in  general  is  the  law  of  the  public  good  in  regard  to  the  domes- 
tic interests,  or  internal  tranquillity  of  the  state. 

XXXVIII.  As  to  foreign  concerns,  the  principal  duties  of 
the  king  are, 

i .  To  live  in  peace  with  his  aeighbours,  as  much  as  he  pos- 
sibly can. 

2.  To  conduct  himself  with  prudence  in  regard  to  the  alli- 
ances and  treaties,  he  makes  with  other  powers. 

3.  To  adhere  faithfully  to  the  treaties  he  has  made. 

4.  Not  to  suffer  the  courage  of  his  subjects  to  be  enervated, 
but,  on  the  contrary,  to  maintain  and  augment  it  by  good  disci- 
pline. 

5.  In  due  and  seasonable  time  to  make  the  preparations  ne- 
cessary to  put  himself  in  a  posture  of  defence. 

6.  Not  to  undertake  any  unjust  or  rash  war. 

7.  Lastly,  even  in  times  of  peace  to  be  very  attentive  to  the 
designs  and  motions  of  his  neighbours, 

XXXIX.  "We  shall  say  no  more  of  the  duties  of  sovereigns. 
It  is  sufficient  at  present  to  have  pointed  out  the  general  princi- 
ples, and  collected  the  chief  heads.  What  we  have  to  say  here- 
after, concerning  the  different  parts  of  sovereignty,  will  give  the 
reader  a  more  distinct  idea  of  the  particular  duties  attending  it= 


END  OF  THS  SECOND  PART. 


THE 


PRINCIPLES 


POLITIC  LAW. 


PART  III. 

A  more  particular  examination  of  the  essential  parts  of  sovereignty, 
or  of  the  different  rights  of  the  sovereign,  with  respect  to  the  inter- 
nal administration  of  the  state,  such  as  the  legislative  power,  the 
supreme  ponver  in  matters  of  religion,  the  right  of  inflicting  pun- 
ishments, and  thaty  which  the  sovereign  has  over  the  Bona  Reipub- 
licas,  or  the  goods  contained  in  the  commonwealth. 

CHAP.  I. 

Of  the  legislative  power,  and  the  civil  laws,  which  arise  from  it. 


I.W, 


E  have  hitherto  explained  what  relates  to  the  na- 
ture of  civil  society  in  general,  of  government,  and  of  sovereign- 
ty, which  is  the  soul  of  it.  Nothing  remains  to  compleat  the 
plan  we  laid  down,  but  more  particularly  to  examine  the  differ- 
ent parts  of  sovereignty,  as  well  those,  which  directly  regard  the 
internal  administration  of  the  state,  as  those,  which  relate  to  its 
interests  abroad,  or  to  its  concerns  with  foreign  powers,  which 
will  afford  us  an  opportunity  of  explaining  the  principal  ques- 
tions relating  to  those  subjects ;  and  to  this  purpose  we  design 
this  and  the  subsequent  part. 

II.   Among  the  essential  parts  of  sovereignty,  we  have  given 
•he  first  rank  to  the  legislative  power y  that  is  to  say,  the  right, 


POLITIC  LAW.  ttt 

which  the  sovereign  has  of  giving  laws  to  his  subjects,  and  of 
directing  their  actions,  or  of  prescribing  the  manner,  in  which 
they  ought  to  regulate  their  conduct ;  and  it  is  from  this  the 
civil  laws  are  derived.  As  this  right  of  the  sovereign  is  as  it 
were  the  essence  of  sovereignty,  order  requires  that  We  should 
begin  with  the  explication  of  whatever  relates  to  it. 

III.  "We  shall  not  here  repeat  what  we  have  elsewhere  said 
of  the  nature  of  laws  in  general  5  but  supposing  the  principles 
we  have  established  on  that  head,  we  shall  only  examine  the  na- 
ture and  extent  of  the  legislative  power  in  society,  and  that  of 
the  civil  laws  and  decrees  of  the  sovereign  thence  derived. 

IV.  Civil  laws  then  are  all  those  ordinances,  by  which  the 
sovereign  binds  his  subjects.  The  assemblage  Or  body  of  those 
ordinances  is  what  we  call  the  Civil  Law.  In  fine  civil  juris- 
prudence is  that  science  or  art,  by  which  the  civil  laws  are  not 
only  established,  but  explained  in  case  of  obscurity,  and  are 
properly  applied  to  human  actions. 

V.  The  establishment  of  civil  society  ought  to  be  fixed  so,  as 
to  make  a  sure  and  undoubted  provision  for  the  happiness  and 
tranquillity  of  man.  For  this  purpose  it  was  necessary  to  es- 
tablish a  constant  order,  and  this  could  only  be  done  by  fixed 
and  determinate  laws. 

VI.  We  have  already  observed,  that  it  was  necessary  to  take 
proper  measures  to  render  the  laws  of  nature  as  effectual,  as 
they  ought  to  be,  in  order  to  promote  the  happiness  of  socie- 
ty \  and  this  is  effected  by  means  of  the  civil  laws. 

For,  1 .  They  serve  to  make  the  laws  of  nature  better  known. 

2.  They  give  them  a  new  degree  of  force,  and  render  the 
observance  of  them  more  secure,  by  means  of  their  sanction,  and 
of  the  punishments,  which  the  sovereign  inflicts  on  those,  who 
despise  and  violate  them. 

3.  There  are  several  things,  which  the  law  of  nature  pre- 
scribes only  in  a  general  and  indeterminate  manner ;  so  that  the 
time,  the  manner,  and  the  application  to  persons,  are  left  to  the 
prudence  and  discretion  of  every  individual.  It  was  however 
necessary,  for  the  order  and  tranquillity  of  the  state,  that  all 
this  matter  should  be  regulated  \  which  is  done  by  the  civil 
laws. 


Jia  THE  PRINCIPLES  OF 

4.  They  also  serve  to  explain  any  obscurity,  that  may  arise 
in  the  maxims  of  the  law  of  nature. 

5.  They  qualify  or  restrain,  in  various  ways,  the  use  of  those 
rights,  which  every  man  naturally  possesses. 

6.  Lastly  they  determine  the  forms,  that  are  to  be  observed, 
and  the  precautions,  which  ought  to  be  taken,  to  render  the  dif- 
ferent  engagements,  that  people  enter  into  with  each  other,  ef- 
fectual and  inviolable  ;  and  they  ascertain  the  manner,  in  which 
a  man  is  to  prosecute  his  rights  in  the  civil  court. 

VII.  In  order  therefore  to  form  a  just  idea  of  the  civil  laws, 
we  must  say,  that,  as  civil  society  is  no  other,  than  natural  so- 
ciety itself,  qualified  or  restrained  by  the  establishment  of  a  sove-> 
reign,  whose  business  it  is  to  maintain  peace  and  order  •,  in  like 
manner  the  civil  laws  are  those  of  nature,  perfected  in  a  man- 
ner suitable  to  the  state  and  advantages  of  society. 

VIII.  As  this  is  the  case,  we  may  very  properly  distinguish 
two  sorts  of  civil  laws.  Some  are  such  with  respect  to  their 
authority  only,  and  others  with  regard  to  their  original.  To  the 
former  class  we  refer  all  the  natural  laws,  which  serve  as  rules 
in  civil  courts,  and  which  are  also  confirmed  by  a  new  sanction 
of  the  sovereign.  Such  are  all  laws,  which  determine  the  crimes, 
that  are  to  be  punished  by  the  civil  justice  ;  and  the  obligations, 
upon  which  an  action  may  commence  in  the  civil  court,  &c. 

As  to  the  civil  laws,  so  called  because  of  their  original,  these 
are  arbitrary  decrees,  which,  for  their  foundation,  have  only  the 
will  of  the  sovereign,  and  suppose  certain  human  establishments  ; 
or  which  regulate  things  relating  to  the  particular  advantage  of 
the  state,  though  indifferent  in  themselves  and  undetermined  by 
the  law  of  nature.  Such  are  the  laws,  which  prescribe  the  ne- 
cessary forms  in  contracts  and  testaments,  the  manner  of  proceed- 
ing in  courts  of  justice,  &c.  But  it  must  be  observed,  that  all  those 
regulations  should  tend  to  the  good  of  the  state,  as  well  as  of 
individuals  ;  so  that  they  are  properly  appendages  to  the  law  of 
nature. 

IX.  It  is  of  great  importance  carefully  to  distinguish,  in  the 
civil  laws,  what  is  natural  and  essential  in  them,  from  what  is 
only  adventitious.  Those  laws  of  nature,  the  observance  of 
which  is  essentially  conducive  to  the  peace  and  tranquillity  of 


NATURAL  LAW.  US 

stives  cannot  serve  us  a  principle  and  rule,  but  inasmuch  as 
it  is  directed  by  right  reason,  according  to  the  exigencies  or 
necessities  of  cur  nature  and  stale. 

For  thus  it  only  becomes  an  interpieter  of  the  Creator's  will 
in  respect  to  us  ;  that  is,  it  ought  to  be  managed  in  such  a 
manner,  as  not  to  offend  the  laws  of  religion  or  society.  Other- 
wise this  ielf-love  would  become  the  source  of  a  thousand  ini- 
quities ;  and,  so  far  from  being  of  any  service,  would  prove  a 
snare  to  us,  by  the  prejudice  we  should  certainly  receive  from 
these  very  iniquities.  -  ' 

X.  From  this  principle,  thus  established,  it  is  easy  to  deduce  Natural 

Irws  dt?ri- 
the  natural  laws  and  duties,  that  directly  concern  us.     The  dc-  re(j  from 

sire  of  happiness  is  attended,  in  the  first  place,  with  the  care  this  prin- 
of  our  preservation.  It  requires  next,  that  (every  thing  else 
being  equal)  the  care  of  the  soul  should  be  preferred  to  that 
of  the  body  We  ought  not  to  neg'ect  to  improve  our  reason, 
by  learning  to  discern  truth  from  falsehood,  the  useful  from 
the  hurtful,  in  order  to  acquire  a  just  knowledge  of  things,  that 
concern  us,  and  to  form  a  right  judgment  of  them.  It  is  in  this 
that  the  perfection  of  the  understanding,  or  wisdom,  consists. 
We  should  afterwards  be  determined,  and  act  constantly  ac- 
cording to  this  light,  in  spite  of  all  contrary  suggestion  and 
passion.  For  it  is  properly  this  vigour  or  perseverance  of  the 
soul,  in  following  the  counsels  of  wisdom,  that  constitutes  vir- 
tue, and  forms  the  perfection  of  the  will,  without  which  the 
light  of  the  understanding  would  be  of  no  manner  of  use. 

From  this  principle  all  the  particular  rules  arise.  You  ask. 
for  example,  whether  the  moderation  of  the  passions  be  a  duty, 
imposed  upon  us  by  the  law  of  nature  ?  In  order  to  give  you 
an  answer,  1  inquire,  in  my  turn,  whether  it  is  necessary  to  our 
preservation,  perfection  and  happiness  ?  If  it  be,  as  undoubt- 
edly it  is,  the  question  is  decided.  You  have  a  mind  to  know 
whether  the  love  of  occupation,  the  discerning  between  permit- 
ted and  forbidden  pleasures,  and  moderation  in  the  use  of  such 
as  are  permitted,  whether,  in  fine,  patience,  constancy,  resolu- 
tion, &c.  are  natural  duties  ;  I  shall  always  answer,  by  making 
use  of  the  same  principle  ;  and,  provided  I  apply  it  well,  my 
answer  cannot  but  be  right  and  exact  ;  because  the  principle 

P        - 


114  NATURAL  LAW. 

conducts  me  certainly  to  the  end,  by  acquainting  nie  with  the 

will  of  God. 

Man  is  XL  There  remains  still  another  point  to  investigate,  namely, 

made  for     „,  •    ,       ~  ,  .    ,  .     .  .  ,  , 

society.        l!e  principle,  t'*c-m  which  we  are  to  oeduce  those  natural  laws, 

that  regard  our  mutual  duties,  and  have  society  for  their  ob- 
ject.  Let  us  see  whether  we  cannot  discover  this  principle, 
■by  pursuing  the  same  method.  We  ought  always  to  consult 
the  actual  state  of  things,  in  order  to  take  their  result. 

I  am  not  the  only  person  upon  earth  ;  I  find  myself  in  the 
middle  of  an  infinite  number  of  other  men,  who  resemble  me 
in  every  respect  ;  and  I  am  subject  to  this  state,  even  from  my 
nativity,  by  the  very  act  of  providence.  This  induces  me  na- 
turally to  think,  it  was  not  the  intention  of  God,  that  each  man 
should  live  single  and  separate  from  the  rest ;  but  that,  on  the 
contrary,  it  was  his  will  they  should  live  together,  and  be  join- 
ed in  society.  The  Creator  might  certainly  have  formed  all 
men  at  the  same  time,  though  separated  from  one  another,  by 
investing  each  of  them  with  the  proper  and  sufficient  qualities 
for  this  kind  of  solitary  life.  If  he  has  not  followed  this  plan, 
it  is  probably  because  it  was  his  will,  that  the  ties  of  consan- 
guinity and  birth  should  begin  to  form  a  more  extensive  union, 
which  he  was  pleased  to  establish  amongst  men. 

The  more  I  examine,  the  more  I  am  confirmed  in  this 
thought.  Most  of  the  faculties  of  man,  his  natural  inclinations, 
his  weakness,  his  wants,  are  all  so  many  indubitable  proofs  of 
this  intention  of  the  Creator. 
1.  Society  XII.  Such  in  effect  is  the  nature  and  constitution  of  man, 
liitely  ne-  tnat  out  °^  society  ne  could  neither  preserve  his  life,  nor  dis- 
cessary  play  and  perfect  his  faculties  and  talents,  nor  attain  any  real 
and  solid  happiness.  What  would  become  of  an  infant,  were 
there  not  some  benevolent  and  assisting  hand  to  provide  for 
his  wants  ?  He  must  perish,  if  no  one  takes  care  of  him  ;  and 
this  state  of  weakness  and  ignorance  requires  even  a  long  and 
continued  assistance.  View  him  when  grown  up  to  manhood, 
you  find  nothing  but  rudeness,  ignorance,  and  confused  ideas, 
Which  he  is  scarce  able  to  convey  ;  abandon  him  to  himself, 
and  you  behold  a  savage,  and  perhaps  a  ferocious  animal ;  ig- 
norant of  all  the  conveniences  of  life,  sunk  in  idleness,  a  prey  to 


THE  PRINCIPLES  OF  115 

spleen  and  melancholy,  and  almost  incapable  of  providing 
against  the  first  wants  of  nature.  If  he  attains  to  old  age,  be- 
hold him  relapsed  into  infirmities,  that  render  him  almost  as 
dependant  on  external  aid,  as  he  was  in  his  infancy.  This  de- 
pendence shows  itself  in  a  more  sensible  manner  in  accidents 
and  maladies.  What  would  then  become  of  man,  were  he  to 
be  in  a  state  of  solitude  ?  There  is  nothing  but  the  assistance 
of  our  fellow  creatures,  that  is  able  to  preserve  us  from  the  cli- 
vers evils,  or  to  redress  them  and  render  us  easy  and  happy, 
in  whatsoever  stage  or  situation  of  human  life. 

V/e  have  an  excellent  picture  of  the  use  of  society,  drawn 
by  Seneca.*  On  what,  says  he,  does  our  security  depend,  but  on 
the  services  ice  render  one  another  ?  It  is  this  commerce  of  bene- 
fits, that  makes  life  easy,  and  enables  us  to  defend  ourselves  against 
any  sudden  insults  or  attacks.  What  would  be  the  fate  of  man- 
hind  were  every  one  to  live  apart  ?  so  many  men,  so  many  victims 
to  other  animals,  an  easy  prey,  in  short,  feebleness  itself.  In  fact, 
other  animals  have  strength  enough  sufficient  to  defend  themselves. 
Those  that  are  wild  and  wandering,  and  whose  ferocity  does  not 
permit  them  to  herd  together,  are  born,  as  it  were,  with  arms  ; 
whereas  man  is  on  all  sides  encompassed  with  weakness,  having 
neither  arms,  nor  teeth,  nor  elates  to  render  him  formidable.  But 
the  strength  he  wants  by  himself,  he  finds  when  united  with  his 
equals. 

Nature,  to  make  amends,  has  endowed  him  with  two  things, 
which  give  him  a  considerable  force  and  superiority,  where  other- 
wise he  would  be  much  inferior  ;  I  mean  reason  and  sociability, 
whereby  he,   who  alone  could  make  no  resistance,   becomes  master 

*  Quo  alio  tuti  summus,  qukm  quod  mutuis  juvaraur  officiis?  Hoc  uno 
itistructior  vita  contraque  incursiones  subitas  munitior  est,  beneficiorum 
commercio.  Fac  nos  singulos,  quid  sumus  ?  Prseda  animalium  et  victi- 
ms, ac  bellissimus  et  facillimus  sanguis.  Quouiam  caeteris  animalibus 
in  tutelam  sui  satis  virium  est  :  qnsecunque  vaga  nascuntur,  ct  actura 
vitarn  segregem,  armata  sunt.  Hominem  imbecillatas  cingit  ;  non  un- 
guium vis,  non  dentium,  terribilem  caeteris  fecit.  Nudum  et  infirm  um 
societas  munit.  Duas  res  dedit  quae  ilium,  obnoxium  caeteris,  validissi- 
mum  facerent,  rationem  et  societatem.  Itaque,  qui  par  esse  nulli  pote- 
rat,  si  seduoeretur,  rerem  potitur.  Sociplas  illi  dominium  omnium  ani- 
malium dedit.  Pocietas  tern's  genitum  in  aliens  naturae  transmisit  im- 
perium,  et  dominari  etiam  in  rnari  jussit.  Hsec  marborum  impetus  ar- 
cuit,  senectuti  adminicula  prospexit,  solatia  contra  dolores  dedit.  Usee 
fortes  nos  fncit,  quod  licet  contra  fortuna  advocare.  Hanc  societatem 
tolle.  et  unitatem  generis  humani,  qua  vita  sustinetur.  scindes.  Senec. 
dt  Bene/,  lib.  4.  Cap.  18. 


116  .  Till:  PRINCIPLES  OF 

of  the  whole.  Society  gives  him  an  empire  over  other  anirrftth  ; 
society  is  the  cause,  that,  not  satisfied  with  the  dement  on  which 
he  /cos  burn,  he  extends  his  command  over  the  sea.  It  is  litis 
same  union,  thai  supplies  him  with  remedies  in  his  diseases,  as- 
sistance  in  his  old  age,  and  comfort  in  his  pains  and  anxieties  ; 
it  is  this,  thai  enables  him,  as  it  were,  to  bid  defiance  to  fortune. 
Take  away  society,  and  you  destroy  the  union  of  mankind,  on 
which  the  preservation  and  the  whole  happiness  of  life  depends. 
5.  Man  by  XIII.  As  society  is  so  necessary  te  man,  God  has  therefore 
<utiC°n*,,~  S'ven  'um  a  constitution,  faculties,  and  taients,  that  rentier  him 
very  fit  for  very  proper  for  this  state.  Sifch  is  for  example,  the  faculty  of 
s°cie  y*  speech,  which  enables  us  to  convey  our  thoughts  with  facility 
and  readiness,  and  would  he  of  no  manner  of  use  out  of  society. 
Ihe  same  may  lie  said  with  regard  to  our  propensity  to  imi- 
tation, and  of  that  surprising  mechanism,  which  renders,  all 
ihe  passions  and  impression.-  of  the  soul  so  easy  to  he  commu- 
nicated. It  is  sufficient  a  man  appears  to  he  moved,  in  order 
to  move  and  soften  others.*  If  a  person  accosts  us  with  joy 
painted  on  his  countenance,  he  excites  in  us  the  like  sentiment 
of  joy.  The  tears  of  a  stranger  affect  us,  even  before  we  know 
the  cause  thereof;!  and  the  cries  of  a  man  related  to  us  only 
by  the  common  tie  of  humanity,  make  us  fly  to  his  succour  by 
a  mechanical  movement  previous  to  all  deliberation. 

This  is  not  all.  We  see  that  nature  has  thought  proper  to 
distribute  differently  her  talents  among  men,  by  giving  to  some 
an  aptitude  to  perform  certain  things,  which  to  others  are  im- 
possible ;  while  the  latter  have  received,  in  their  turn,  an  in- 
dustry denied  to  the  former.  Wherefore  if  the  natural  wants 
of  men  render  them  dependant  on  one  another,  the  diversity 
of  taients,  which  qualifies  them  for  mutual  aid,  connects  and 
unites  them.  These  are  so  many  evident  signs  of  man's  being 
designed  for  society. 

3  Our  na-      XIV.   But,  if  we  consult  our  own  inclinations,  we  shall  like- 

tura1  incli-  .  . 

nations       wise  nnu    that   our  hearts  are  naturally  bent  to  wish  lor  the 

prompt  us  company  of  our  equals,  and  to  dread  an  mtire  solitude,  as  an 

to  look  out 

for  society,  irksome  and  forlorn  state.     And   though  there   have  been  in- 

*  Homo  sum,  human!  nihil  a  me  alicmin  puto.     Ter.  Heauton. 
t  Ut  ridfiitibus  adridpu',  ita  flentibua  adsiint 
Humani  vtiltus Uor.  dc  arte  poet.  v.   151. 


NATURAL  LAW.  U7 

stances  of  people,  who  have  thrown  themselves  into  a  solitary 
life,  yet  we  cannot  consider  this  in  any  other  light,  but  as  the 
effect  of  superstition,  or  melancholy,  or  of  a  singularity  ex- 
tremely remote  from  the  state  of  nature.  Were  we  to  inves- 
tigate the  cause  of  this  social  inclination,  we  should  find  it 
wisely  bestowed  on  us  by  the  author  of  our  being  ;  by  reason 
that  it  is  in  society  man  finds  a  remedy  for  the  greatest  part  of 
his  wants,  and  an  occasion  for  exercising  most  of  his  faculties  ; 
it  is  in  society  he  is  capable  of  feeling  and  displaying  those 
sensations,  on  which  nature  has  intailed  so  much  satisfaction 
and  pleasure  ;  I  mean  the  sensations  of  benevolence,  friend- 
ship, compassion,  and  generosity.  For  such  are  the  charms 
of  social  affections,  that  from  them  our  purest  enjoyments 
arise.  Nothing  in  fact  is  so  satisfactory  and  flattering  to  man, 
as  to  think  he  merits  the  esteem  and  friendship  of  others.  Sci- 
ence acquires  an  additional  value,  when  it  can  display  itself 
abroad  ;  and  our  joy  becomes  more  sensible,  when  we  have  an 
opportunity  of  testifying  it  in  public,  or  of  pouring  it  into  the 
bosom  of  a  friend.  It  is  redoubled  by  being  communicated  ; 
for  our  own  satisfaction  is  increased  by  the  agreeable  idea  we 
have  of  giving  pleasure  to  our  friends,  and  of  fixing  them  more 
steadily  in  our  interest.  Anxiety  on  the  contrary  is  alleviated 
and  softened  by  sharing  it  with  our  neighbour  ;  just  as  a  bur- 
den is  eased,  when  a  goodnatured  person  helps  us  to  bear  it. 

Thus  every  thing  invites  us  to  the  state  of  society  ;  want 
renders  it  necessary  to  us,  inclination  makes  it  a  pleasure,  and 
the  dispositions  we  naturally  have  for  it,  are  a  sufficient  indi- 
cation of  its  being  really  intended  by  our  Creator. 

XV.  But,  as  human  society  can  neither  subsist,  nor  produce  Sociabili- 

the   happy  effects,   for  which   God   has  established  it,   unless^'.     .  , 

1  rmcipie 
mankind  have  sentiments  of  affection  and  benevolence  for  one  of  nat  iral 

another;  it  follows  that  our  Creator  and  common  Father  js'awsreia- 

tive  to 
willing,   that  every  body  should  he  animated  with  these  senti- ether  men. 

meuts,  and  do  whatever  lies  in  their  power  to  maintain  this 
society  in  an  agreeable  and  advantageous  state,  and  to  tic  the 
knot  still  closer  by  reciprocal  services  and  benefits. 

This  is  the  true  principle  of  the  duties,  which  the  law  of  na- 
ture prescribes  to  us  in  respect  to  other  men.     Ethical  writer* 


118 


THE  PRINCIPLES  OF 


Natural 
laws, 
which 
flow  from 
aociabili- 

ty- 

1.  The 

public 
good 
ought  al- 
ways to  be 
Ihe  su- 
preme 
rule. 

2.  The  spi- 
rit of  so- 
ciability 
ought  to 
be  univer- 
sal. 

3.  To  ob- 
serve a 
natural 

equality. 


have  given  it  the  name  of  Sociability,  hy  which  they  understand 
that  disposition,  which  inclines  us  to  benevolence  to  our  fel- 
low-creatures, to  do  them  all  the  good,  that  lies  in  our  power, 
to  reconcile  our  own  happiness  to  that  of  others,  and  to  ren- 
der our  particular  advantage  subordinate  to  the  common  and 
general  good. 

The  more  we  study  our  own  nature,  the  more  we  are  con- 
vinced, that  this  sociability  is  really  agreeable  to  the  will  of 
God.  For,  besides  the  necessity  of  this  principle,  we  find  it 
engraved  in  our  heart ;  where,  if  the  Creator  has  implanted 
on  one  side  the  love  of  ourselves,  the  same  hand  has  imprinted 
on  the  other  a  sentiment  of  benevolence  for  our  fellow-crea- 
tures. These  two  inclinations,  though  distinct  from  one  ano- 
ther, have  nothing  opposite  in  their  nature  ;  and  God,  who  has 
bestowed  them  upon  us,  designed  they  should  act  in  concert, 
in  order  to  help,  and  not  to  destroy  each  other.  Hence  good- 
natured  and  generous  hearts  feel  a  most  sensible  satisfaction 
in  doing  good  to  mankind,  because  in  this  they  follow  the  in- 
clination, they  received  from  nature. 

XVI.  From  the  principle  of  sociability,  as  from  their  real  ' 
source,  all  the  laws  of  society,  and  all  our  general  and  parti- 
cular duties  toward  other  men,  are  derived. 

1.  This  union,  which  God  has  established  among  men,  re- 
quires that,  in  every  thing  relating  to  society,  the  public  good 
should  be  the  supreme  rule  of  their  conduct,  and  that,  guided 
by  the  counsels  of  prudence,  they  should  never  pursue  their 
private  advantage  to  the  prejudice  of  the  public  ;  for  this  is 
what  their  state  demands,  and  is  consequently  the  will  of  their 
common  father. 

2.  The  spirit  of  sociability  ought  to  be  universal.  Human 
society  embraces  all  those  with  whom  we  can  have  possibly 
any  communication  ;  because  it  is  founded  on  the  relations, 
they  all  bear  to  one  another,  in  consequence  of  their  nature 
and  state.* 

3.  Reason  afterwards  informs  us,  that  creatures  of  the  same 
rank  and  species,  born  with  the  same  faculties  to  live  in  socie- 
ty, and  to  partake  of  the  same  advantages,  have  in  general  an 

*  See  Puffcndorf.  '  ->"•  of  Nature  anil  Nations,  book  ii.  chap.  iii.  sect.  15. 


NATURAL  LAW.  119 

equal  and  common  right.  We  are  therefore  obliged  to  con- 
sider ourselves  as  naturally  equal,  and  to  behave  as  such  ;  and 
it  would  be  bidding  defiance  to  nature  not  to  acknowledge  this 
principle  of  equity  (which  by  the  civilians  is  called  ccguabilitas 
juris)  a?  one  of  the  first  foundations  of  society.  It  is  on  this 
the  lex  talionis  is  founded,  as  also  that  simple  but  universal 
and  useful  rule,  that  we  ought  to  have  the  same  dispositions 
in  regard  to  other  men,  as  we  desire  they  should  have  towards 
us,  and  to  behave  in  the  same  manner  towards  them,  as  we 
are  willing  they  should  behave  to  us  in  the  like  circum- 
stances. 

4.    Sociability    being  a  reciprocal  obligation  among  men,  4.  To  pre  - 

such,  as  through  malice  or  injustice  break  the  band  of  society,  serve  abe- 
,  ..  nevolence 

cannot  reasonably  complain,    if  those,   they  have  injured,    do  even  to- 

not  treat  them  as  friends,  or  even  if  they  proceed  against  them  wards.  our 

enemies. 
as  enemies.  Self  de- 

But,  though  we  have  a  right  to  suspend  the  acts  of  benevo-  'ence. 1S 

°  or  permitted, 

lence  in  regard  to  an  enemy,  yet  we  are  never  allowed  to  stifle  revenge  is 
its  principle.  As  nothing  but  necessity  can  authorise  us  to not> 
have  recourse  to  force  against  an  unjust  aggressor,  so  this 
same  necessity  should  be  the  rule  and  measure  of  the  harm 
we  do  him ;  and  we  ought  to  be  always  disposed  to  reconcile- 
ment so  soon,  as  he  has  done  us  justice,  and  we  have  nothing 
farther  to  apprehend. 

We  must  therefore  distinguish  carefully  between  a  just  de- 
fence of  one's  own  person,  and  revenge.  The  first  does  but 
suspend,  through  necessity  and  for  awhile,  the  exercise  of  be- 
nevolence, and  has  nothing  in  it  opposite  to  sociability.  But  \ 
the  other  stifling  the  very  principle  of  benevolence,  introduces 
in  its  stead  a  sentiment  of  hatred  and  animosity,  a  sentiment 
vicious  in  itself,  contrary  to  the  public  good,  and  expressly 
condemned  by  the  law  of  nature. 

XVII.  These  general  rules  are  very  fertile  of  consequences.  Particular 

We  should  do  no  wrong  to  any  one,   either  in  word  or  ac-  quences# 
tion  ;  and  we  ought  to  repair  all  damages  by  us  committed  ; 
for  society  could  not  subsist,  were  acts  of  injustice  tolerated. 

We  ought  to  be  sincere  in  our  discourse,   and  steady  in  our 


120  THE  PRINCIPLES  OF 

engagements  ;  for  what  trust  could  men  repose  in  one  another, 
and  what  security  could  they  have  in  commercial  life,  were  it 
lawful  to  violate  their  plighted  faith  ? 

We  not  only  ought  to  do  every  man  the  good  he  properly 
deserves,  but  moreover  we  should  pay  him  the  degree  bf  esteem 
and  honor  due  to  him,  according  to  his  estate  and  rank  ;  because 
subordination  is  the  link  of  society,  without  which  there  can  he 
no  order  either  in  families,  or  in  civil  governments. 

But  if  the  public  good  requires,  that  inferiors  should  obey, 
it  demands  also,  that  superiors  should  preserve  the  rights  of 
those,  who  are  subject  to  them,  and  should  govern  their  people 
only  in  order  to  render  them  happy. 

.Again  ;  men  are  captivated  by  the  heart  and  by  favours  ; 
now  nothing  is  more  agreeable  to  humanity,  or  more  useful  to 
society,  than  compassion,  lenity,  beneficence,  and  generosity. 
This  is  what  induced  Cicero  to  say,*  there  is  nothing  truer  than 
that  excellent  maxim  of  Plato,  viz.  that  we  are  not  born  for  our- 
selves alone,  but  likewise  for  our  country  and  friends  ;  and  if,  ac- 
cording to  the  Stoics,  the  productions  of  the  earth  are  for  men, 
and  men  themselves  for  the  good  and  assistauce  of  one  another  ; 
we  ought  certainly,  in  this  respect,  to  comply  with  the  design  of 
nature,  and  promote  her  intention  by  contributing  our  share  to  the 
general  interest,  by  mutually  giving  and  receiving  good  turns, 
and  employing  all  our  care  and  industry,  and  even  our  substance, 
to  strengthen  that  love  and  friendship  which  should  always  pre- 
vail in  human  society. 

Since  therefore  the  different  sentiments  and  acts  of  justice 
and  goodness  are  the  only  and  true  bonds,  that  knit  men  to- 
gether, and  are  capable  of  contributing  to  the  stability,  peace, 
and  prosperity  of  society  ;  we  must  look  upon  those  virtues, 
as  so  many  duties,  that  God  imposes  on  us,  for  this  reason, 
because  whatever  is  necessary  to  his  design  is  of  course  con- 
formable to  his  will. 

*  Ped  quoniam  (ut  predate  scripturn  est  au  Plautone)  non  nobis  so- 
lum naii  humus,  ortusque  nostri  partem  patria  vindicat,  partem  amici  ; 
atque  (ut  p  acet  Stoicis)  quae  in  terris  gfigantur,  ad  usura  honiinum  om- 
nia creari,  homines  autem  hominum  causa  esse  generatos,  ut  ipsi  inter 
se  alii  prodesse  posseut ;  in  hoc  naturam  debemus  ducem  sequi,  et  com- 
munes utiliates  in  medium  afferre  mutatione  officiorum,  dando,  accipi- 
eudo  ;  turn  artibus,  turn  opera,  turn  iacultatibus  deviucire  hominum 
int<*r  homines  societatem.     Cic.  dt  Ojjic.  lib.  i.  cap.  7. 


POLITIC  LAW,  121 

of  inducing  men  to  a  ready  and  sure  obedience,  and  of  forming 
their  manners.  Without  this  the  laws  could  not  have  a  suf- 
ficient force  to  restrain  the  subject  within  the  bounds  of  his 
duty.  So  long  as  men  do  not  obey  the  laws  from  principle, 
their  submission  is  precarious  and  uncertain  ;  and  they  will  be 
ever  ready  to  withdraw  their  obedience,  when  they  are  per- 
suaded they  can  do  it  with  impunity. 

IV.  If  therefore  people's  manner  of  thinking,  or  the  ideas 
and  opinions  commonly  received,  and  to  which  they  are  accus- 
tomed, have  so  much  influence  on  their  conduct,  and  so  strong- 
ly contribute  either  to  the  good  or  evil  of  the  state  ;  and  if  it 
be  the  duty  of  the  sovereign  to  attend  to  this  article,  he  ought 
to  neglect  nothing,  that  can  contribute  to  the  education  of 
youth,  to  the  advancement  of  the  sciences,  and  to  the  progress 
of  truth.  If  this  be  the  case,  we  must  needs  grant  him  a  right 
of  judging  of  the  doctrines  publicly  taught,  and  of  proscribing 
all  those,  which  may  be  opposite  to  the  public  good  and  tran- 
quillity. 

V.  It  belongs  therefore  to  the  sovereign  alone  to  establish 
academies  and  public  schools  of  all  kinds,  and  to  authorize  the 
respective  professors.  It  is  his  business  to  take  care,  that 
nothing  be  taught  in  them  under  any  pretext,  contrary  to  the 
fundamental  maxims  of  natural  la»v,  to  the  principles  of  reli- 
gion or  good  politics  ;  in  a  word,  nothing  capable  of  producing 
impressions  prejudicial  to  the  happiness  of  the  state. 

VI.  But  sovereigns  ought  to  be  particularly  delicate,  as  to 
the  manner  of  using  this  prerogative,  and  not  to  exert  it  beyond 
its  just  bounds,  but  to  use  it  only  according  to  the  rules  of  jus- 
tice and  prudence,  otherwise  great  abuses  will  follow.  Thus  a 
particular  point  or  article  may  be  misapprehended,  as  detrimen- 
tal to  the  state,  while,  in  the  main,  it  no  way  prejudices,  but 
rather  is  advantageous  to  society  ;  or  princes,  whether  of 
their  own  accord,  or  at  the  instigation  of  wicked  ministers,  may 
erect  inquisitions  with  respect  to  the  most  indifferent  and  even 
the  truest  opinious,  especially  in  matters  of  religion. 

VII.  Supreme  rulers  cannot  therefore  be  too  much  on  their 
guard,  against  suffering  themselves  to  be  imposed  on  by  wick- 
ed men,  who  under  a  pretext  of  public  good  and  tranquillity 

Q 


122  THE  PRINCIPLES  OF 

seek  only  their  own  particular  interests,  and  who  use  their  ut- 
most efforts  to  render  opinions  obnoxious,  only  with  a  view  to 
ruin  men  of  greater  probity  than  themselves. 

VIII.  The  advancement  of  the  sciences  and  the  progress  of 
truth  require,  that  a  reasonable  liberty  should  be  granted  to  all 
those,  who  busy  themselves  in  such  laudable  pursuits,  and  that 
we  should  not  condemn  a  man  as  a  criminal,  merely  because, 
on  certain  subjects,  he  has  ideas  different  from  those  commonly 
received.  Besides,  a  diversity  of  ideas  and  opinions  is  so  far 
from  obstructing,  that  it  rather  facilitates  the  progress  of  truth  ; 
provided  however  that  sovereigns  take  proper  measures  to 
oblige  men  of  letters  to  keep  within  the  bounds  of  moderation, 
and  that  just  respect,  which  mankind  owe  to  one  another  ;  and 
that  they  exert  their  authority  in  checking  those,  who  grow  too 
warm  in  their  disputes,  and  break  through  all  rules  of  decency, 
so  as  to  injure,  calumniate,  and  render  suspected,  every  one, 
that  is  not  in  their  way  of  thinking.  We  must  admit,  as  an 
indubitable  maxim,  that  truth  is  of  itself  very  advantageous  to 
mankind,  and  to  society  ;  that  no  true  opinion  is  contrary  to 
peace  and  good  order  ;  and  that  all  those  notions,  which,  of 
their  nature,  are  subversive  of  good  order,  must  certainly  be 
false  ;  otherwise  we  must  assert,  that  peace  and  concord  are 
repugnant  to  the  laws  of  nature. 


CHAP.  III. 

Of  the  power  of  the  sovereign  in  matters  of  religion. 

I.  JL  HE  power  of  the  sovereign,  in  matters  of  religion,  is 
of  the  last  importance.  Every  one  knows  the  disputes,  which 
have  long  subsisted  on  this  topic  between  the  empire  and  the 
priesthood  ;  and  how  fatal  the  consequences  of  it  have  been  to 
states.  Hence  it  is  equally  necessary,  both  to  sovereigns  and 
subjects,  to  form  just  ideas  on  this  article. 

II.  My  opinion  is,  that  the  supreme  authority  in  matters  of 
religion,  ought  necessarily  to  belong  to  the  sovereign  ;  and  the 
following  are  my  reasons  for  the  assertion. 


POLITIC  LAW.  123 

III.  I  observe,  1.  th?.t  if  the  interest  of  society  requires,  that 
laws  should  be  established  in  relation  to  human  affairs,  that  is, 
to  things,  which  properly  and  directly  interest  only  our  tem- 
poral happiness  ;  this  same  interest  cannot  permit,  that  we 
should  altogether  neglect  our  spiritual  concerns,  or  those, 
which  regard  religion,  and  leave  them  without  any  regulation. 
This  has  been  acknowledged  in  all  ages,  and  among  all  na- 
tions ;  and  this  is  the  origin  of  the  civil  Law,  properly  so  call- 
ed, and  of  the  sacred  or  ecclesiastical  Law.  All  civilized  na- 
tions have  established  these  two  sorts  of  law. 

IV.  But,  if  matters  of  religion,  have  in  several  respects, 
need  of  human  regulation,  the  right  of  determining  them  in 
the  last  resort  can  belong  only  to  the  sovereign. 

First  Proof.  This  is  incontestably  proved  by  the  very  nature 
of  sovereignty,  which  is  no  more  than  the  right  of  determining 
in  the  last  resort,  and  consequently  admits  of  no  power  in  the 
society  it  governs,  either  superior  to,  or  exempt  from  its  juris- 
diction ;  but  embraces,  in  its  full  extent,  every  thing,  that  can 
interest  the  happiness  of  the  state,  both  sacred  and  projane. 

V.  The  nature  of  sovereignty  cannot  permit  any  thing  sus- 
ceptible of  human  direction,  to  be  withdrawn  from  its  autho- 
rity ;  for  what  is  withdrawn  from  the  authority  of  the  sovereign 
must  either  be  left  independent,  or  subjected  to  some  other 
person  different  from  the  sovereign  himself. 

VI.  Were  no  rule  established  in  matters  of  religion,  this 
would  be  throwing  it  into  a  confusion  and  disorder,  quite  con- 
trary to  the  good  of  society,  the  nature  of  religion,  and  the 
views  of  the  Deity,  who  is  the  author  of  it.  But,  if  we  submit 
these  matters  to  an  authority  independent  of  that  of  the  sove- 
reign, we  fall  into  another  inconveniency  ;  since  thus  we  es- 
tablish, in  the  same  society,  two  sovereign  powers,  indepen- 
dent of  each  other  ;  which  is  not  only  incompatible  with  the 
nature  of  sovereignty,  but  a  contradiction  in  itself. 

VIII.  And  indeed,  if  there  were  several  sovereigns  in  the 
same  society,  they  might  also  give  contrary  orders.  But  who 
does  not  perceive,  that  opposite  orders,  with  respect  to  the  same 
affair,  are  manifestly  repugnant  to  the  nature  of  things,  and  can- 
not have  their  effect,  nor  produce  a  real  obligation  ?  How  would 


124  THE  PRINCIPLES  OF 

it  be  possible  for  instance,  that  a  man,  who  receives  different 
orders  at  the  same  time  from  two  superiors,  such  as  to  repair 
to»the  camp  and  to  go  to  church,  should  be  obliged  to  obey- 
both  1  If  it  be  said,  that  he  is  not  obliged  to  comply  with  both, 
there  must  therefore  he  some  subordination  of  the  one  to  the 
other,  the  inferior  will  yield  to  the  superior,  and  it  -will 
not  be  true,  that  they  are  both  sovereign  and  independent.  We 
may  here  very  properly  apply  the  words  of  Christ.  No  man  can 
serve  two  masters.  A  nd  a  kingdom  divided  against  itself  cannot 
stand. 

VIII.  Second  Proof.  I  draw  my  second  proof  from  the  end 
of  civil  society  and  sovereignty.  The  end  of  sovereignty  is 
certainly  the  happiness  of  the  people,  and  the  preservation  of 
the  stale.  Now,  as  religion  may  several  ways  either  injure  or 
benefit  the  state,  it  follows,  that  the  sovereign  has  a  right  over 
religion,  at  least  so  far  as  it  can  depend  on  human  direction. 
He,  who  has  a  right  to  the  end,  has  undoubtedly  a  right  also 
a  right  to  the  means. 

IX.  Now,  that  religion  may  several  ways  injure  or  benefit 
the  state,  we  have  already  proved  in  the  first  volume  of  this 
work. 

1.  All  men  have  constanily  acknowledged  that  the  Deity 
makes  his  favours  lo  a  state  depend  principally  on  the  care, 
which  the  sovereign  takes  to  induce  his  subjects  to  honor  and 
serve  him. 

2.  Religion  can  of  itself  contribute  greatly  to  render  mankind 
more  obedient  to  the  laws,  more  attached  to  their  country,  and 
more  honest  towards  one  another. 

3.  The  idoct lines  and  ceremonies  of  religion  have  a  consi- 
derable influence  on  the  morals  of  the  people,  and  on  the  pub- 
lic happiness.  The  ideas,  which  mankind  imbibed  of  the 
Deity,  have  often  misled  them  to  the  most  preposterous  forms 
of  worship,  and  prompted  them  to  sacrifice  human  victims. 
They  have  even,  from  those  false  ideas,  drawn  arguments  in 
justification  of  vice,  cruelty,  and  licentiousness  ;  as  we  may  see 
by  reading  tree  ancient  poets.  Since  religion  therefore  has  so 
much  influence  over  the  happiness  or  misery  of  society,  who 
can  doubt  but  it  is  subject  to  the  direction  of  the  sovereign. 


POLITIC  LAW.  125 

X.  Third  Proof.  What  we  have  been  affirming  evinces,  thai 
it  is  incumbent  ou  the  sovereign  to  make  religion,  which  includes 
the  most  valuable  interests  of  mankind,  the  principal  object  of 
his  care  and  application.  He  ought  to  promote  the  eternal,  as 
well  as  the  present  and  temporal  happiness  of  his  iubjects. 
This  is  therefore  a  point  properly  subject  to  his  jurisdictb  n. 

XL  Fourth  Proof.  In  fine  we  can  in  general  acknowledge 
only  two  sovereigns,  God  and  the  prince.  The  sovereignty  of 
God  is  a  transcendent,  universal,  and  absolute  supremacy,  to 
which  even  princes  themselves  are  subject ;  the  sovereignty  of 
the  prince  holds  the  second  rank,  and  is  subordinate  to  that  of 
God,  but  in  such  a  manner,  that  the  prince  has  a  right  to  regu- 
late every  thing,  which  interests  the  happiness  of  society,  and 
by  scripture  is  susceptible  of  human  direction. 

XII.  After  having  thus  established  the  right  of  the  sovereign 
in  matters  of  religion,  let  us  examine  into  the  extent  and  bounds 
of  his  prerogative  ;  whereby  it  will  appear,  that  these  bounds 
are  not  different  from  those,  which  the  sovereignty  admits  in  all 
other  matters.  We  have  already  observed,  that  the  power  of 
the  sovereign  extended  to  every  thing  susceptible  of  human  di- 
rection. Hence  it  follows,  tiiat  the  first  boundary  we  ought  to 
fix  to  the  authority  of  the  sovereign,  but  which  indeed  is  so  ob- 
vious, as  hardly  needs  mentioning,  is,  that  he  can  order  noth- 
ing impossible  in  its  nature,  either  in  religion  or  any  thing  else  : 
as  for  example  to  fly  into  the  air,  to  believe  eentradictions,  &c. 

XIII.  The  second  boundary,  but  which  does  not  more  par- 
ticularly interest  religion,  than  every  thing  else,  is  deduced  from 
the  divine  laws  ;  for  it  is  evident,  that,  all  human  authority 
being  subordinate  to  that  of  God,  whatever  the  Deity  has  de- 
termined by  some  law,  whether  natural  or  positive,  cannot  be 
changed  by  the  sovereign.  This  is  the  foundation  of  that  max- 
im,  It  is  bitter  to  (.bey  God  than  man. 

XIV.  It  is  in  consecjuence  of  these  principles,  that  no  human 
authority  can  for  example,  forbid  the  preaching  of  the  gospel, 
or  the  use  of  the  sacraments,  nor  establish  a  new  article  of 
faith,  nor  introduce  a  new  worship  ;  for  God  having  given  us 
a  rule  of  religion,  and  forbidden  us  to  alter  this  rule,  it  is  not  in 
.the  power  of  man  to  do  it  ;  and  it  would  be  absurd  to  imagine, 


120  THE  PRINCIPLES  OF 

ifi at  any  person  whatever  can  either  believe  or  practice  a  thing 
as  con'ducive  to  his  salvation,  in  opposition  to  the  divine  de- 
claration. 

XV.  It  is  also  on  the  footing  of  the  limitations  here  es- 
tablished that  the  sovereign  cannot  laAvfully  assume  to  himself 
an  empire  over  consciences,  as  if  it  were  in  his  power  to  im- 
pose the  necessity  of  believing  such  or  such  an  article  in  mat- 
ters of  religion.  Nature  itself  and  the  divine  laws  are  equally 
contrary  to  this  pretension.  It  is  therefore  no  less  absurd  than 
impious  to  endeavour  to  constrain  consciences,  and  to  propa- 
gate religion  by  force  of  arms.  The  natural  punishment  of 
those,  who  are  in  an  error,  is  to  be  taught.*  As  for  the  rest, 
we  must  leave  the  care  of  the  success  to  God. 

XVI.  The  authority  of  the  sovereign,  in  matters  of  religion, 
cannot  therefore  extend  beyond  the  bounds  we  have  assigned 
to  it;  but  these  are  the  only  bounds,  neither  do  I  imagine  it 
possible  to  think  of  any  others.  But  what  is  principally  to  be 
observed  is,  that  these  limits  of  the  sovereign  power,  in  matters 
of  religion,  are  not  different  from  those  he  ought  to  acknow- 
ledge in  every  other  matter  ;  on  the  contrary,  they  are  pre- 
cisely the  same  ;  and  equally  agree  with  all  the  parts  of  the 
sovereignty,  being  no  less  applicable  to  common  subjects  than 
to  those  of  religion.  For  example,  it  would  be  no  more  lawful 
for  a  father  to  neglect  the  education  of  his  children,  though 
the  prince  should  order  him  to  neglect  it,  than  it  would  be  for 
pastors  or  Christians  to  abandon  the  service  of  God,  even  if 
they  had  been  commanded  so  to  do  by  an  impious  sovereign. 
The  reason  of  this  is,  because  the  law  of  God  prohibits  both, 
and  this  law  is  superior  to  all  human  authority. 

XVII.  However,  though  the  power  of  the  sovereign,  in  mat- 
ters of  religion,  cannot  change  what  God  has  determined,  we 
may  affirm,  that  those  very  things  are,  in  some  measure,  sub- 
mitted to  the  authority  of  the  sovereign.  Thus  for  example 
the  mince  has  certainly  a  right  to  remove  the  external  obstacles, 
which  may  prevent  the  observance  of  the  laws  of  God,  and  to 
make  such  an  observance  easy.  This  is  even  one  of  his  principal 
duties.     Hence  also  arises  his  prerogative  of  regulating  the 

''  i  iTiuitis  pcfitia  c^-t  doceri. 


POLITIC  LAW.  127 

functions  of  the  clergy  and  the  circumstances  of  external  wor- 
ship, that  the  whole  may  be  performed  with  greater  decency, 
so  far  at  least,  as  the  law  of  God  has  left  these  things  to  hu- 
man direction.  In  a  word  it  is  certain,  that  the  supreme  ma- 
gistrate may  also  give  an  additional  degree  of  force  and  obli- 
gation to  the  divine  laws,  by  temporal  rewards  and  punish- 
ments. We  must  therefore  acknowledge  the  right  of  the  sove- 
reign in  regard  to  religion,  and  that  this  right  cannot  belong 
to  any  power  on  earth. 

XVIII.  Yet  the  defenders  of  the  rights  of  the  priesthood 
start  many  difficulties  on  this  subject,  which  it  will  be  proper 
to  answer.  If  God,  say  they,  delegates  to  men  the  authority 
he  has  over  his  church,  it  is  rather  to  his  pastors  and  ministers 
of  the  gospel,  than  to  sovereigns  and  magistrates.  The  power 
of  the  magistrate  does  not  belong  to  the  essence  of  the  church. 
God,  on  the  contrary,  has  established  pastors  over  his  church, 
and  regulated  the  functions  of  their  ministry  ;  and  in  their 
office  they  are  so  far  from  being  the  vicegerents  of  sovereigns, 
that  they  are  not  obliged  even  to  pay  them  an  unlimited  obedi- 
ence. Besides,  they  exercise  their  functions  on  the  sovereign, 
as  well  as  on  private  persons ;  and  the  scripture,  as  well  as 
church  history,  attribute  a  right  of  government  to  them. 

Answer.  When  they  say,  that  the  power  of  the  magistrate 
does  not  belong  to  the  essence  of  the  church,  they  would  explain 
themselves  more  properly,  if  they  said,  that  the  church  may  sub- 
sist, though  there  were  no  magistrates.  This  is  true,  but  we 
cannot  hence  conclude,  that  the  magistrate  has  no  authority  over 
the  church  ;  for,  by  the  same  reason,  we  might  prove,  that  mer- 
chants, physicians,  and  every  person  else,  do  not  depend  on  the 
sovereign  ;  because  it  is  not  essential  to  merchants,  physicians, 
and  mankind  in  general,  to  be  governed  by  magistrates.  How- 
ever, reason  and  scripture  subject  them  to  the  superior  powers. 

XIX.  2.  What  they  add  is  very  true,  that  God  has  establish- 
ed pastors,  and  regulated  their  functions,  and  that  in  this  qua- 
lity they  are  not  the  vicegerents  of  human  powers  ;  but  it  is 
easy  to  convince  them  by  examples,  that  they  can  draw  no  con- 
sequence from  this  to  the  prejudice  of  the  supreme  authority. 
The  function  of  a  physician  is  from  God,  as  the  Author  of  na- 


123  THE  PRINCIPLES  OF 

ture  ;  and  that  of  a  pastor  is  derived  also  from  the  Deity,  as 
the  Author  of  religion.  This  however  does  not  hinder  the 
physician  from  having  a  dependance  on  the  sovereign.  The 
same  may  be  said  of  agriculture,  commerce,  and  all  the  arts. 
Besides,  the  judges  hold  their  offices  and  places  from  the 
prince,  yet  they  do  not  receive  all  the  rules  they  are  to  follow 
from  him.  It  is  God,  himself,  who  orders  them  to  take  no 
bribe,  and  to  do  nothing  through  hatred  or  favor,  &c.  Noth- 
ing more  is  requisite  to  show  how  unjust  a  consequence  it  is 
to  pretend,  that,  because  a  thing  is  established  by  God,  it 
should  be  independent  of  the  sovereign. 

XX.  3.  But,  say  they,  pastors  are  not  always  obliged  to 
obey  the  supreme  magistrate.  We  agree,  but  we  have  ob- 
served, that  this  can  only  take  place  in  matters  directly  oppo- 
site to  the  law  of  God  ;  and  we  have  shown,  that  this  right  is 
inherent,  in  every  person  in  common  affairs,  as  well  as  in  re- 
ligion, and  consequently  does  not  derogate  from  the  authority 
of  the  sovereign. 

XXI.  4.  Neither  can  we  deny,  that  the  pastoral  functions 
are  exercised  on  kings  ;  not  only  as  members  of  the  church, 
but  also  in  particular  as  possessed  of  the  regal  power.  But 
this  proves  nothing ;  for  what  function  is  there,  that  does  not 
regard  the  sovereign  ?  In  particular  does  the  physician  less 
exercise  his  profession  on  the  prince,  than  on  other  people  ? 
Does  he  not  equally  prescribe  for  him  a  regimen  and  the  me- 
dicines necessary  for  his  health  1  Does  not  the  office  of  a  coun- 
sellor regard  also  the  sovereign,  and  even  in  his  quality  of  chief 
magistrate  ?  and  yet  who  ever  thought  of  exempting  those  per- 
sons from  a  subjection  to  the  supreme  authority  ? 

XXII.  5.  But  lastly,  say  they,  is  it  not  certain,  that  scrip- 
ture and  ancient  history  ascribe  the  government  of  the  church 
to  pastors  1  This  is  also  true,  but  we  need  only  examine  into 
the  nature  of  the  government,  belonging  to  the  ministers  of  re- 
ligion, to  be  convinced,  that  it  does  not  at  all  diminish  the  au- 
thority of  the  sovereign. 

XXIII.  There  is  a  government  of  simple  direction,  and  a  gov- 
ernment of  authority.  The  former  consists  in  giving  counsel, 
or  teaching  the  rules,   which  ought  to  be  followed.     But  if 


POLITIC  LAW.  129 

supposes  no  authority  in  him,  who  governs ;  neither  does  it  re- 
strain the  liberty  of  those,  who  are  governed,  except  in  as  much 
as  the  laws,  inculcated  on  that  occasion,  imply  an  obligation  of 
themselves.  Such  is  the  government  of  physicians  concerning 
health,  of  lawyers  with  regard  to  civil  affairs,  and  of  counsellors 
of  state  with  respect  to  politics.  The  opinions  of  those  persons 
are  not  obligatory  in  regard  to  indifferent  things  ;  and  in  neces- 
sary affairs  they  are  not  binding  of  themselves,  but  only  so  far, 
as  they  inculcate  the  laws  established  by  nature,  or  by  the  sove- 
reign, and  this  is  the  species  of  government  belonging  to  pastors. 

XXIV.  But  there  is  also  a  government  01  jurisdiction  and  au- 
thority, which  implies  the  right  of  establishing  regulations,  and 
really  obliges  the  subject.  This  government,  arising  from  the 
sovereign  authority,  obliges  by  the  nature  of  the  authority  itself, 
which  confers  the  power  of  compulsion.  But  it  is  to  be  remark- 
ed, that  real  authority  is  inseparable  from  the  right  of  compel- 
ling and  obliging.  These  are  the  criterion  by  which  alone  it 
may  be  distinguished.  It  is  this  last  species  of  government, 
which  we  ascribe  to  the  sovereign  ;  and  of  which  we  affirm, 
that  it  does  not  belong  to  pastors.* 

XXV.  We  therefore  say,  that  the  government,  belonging  to 
pastors,  is  that  of  counsel,  instruction,  and  persuasion,  whose 
entire  force  and  authority  consists  in  the  word  of  God,  which, 
they  ought  to  teach  the  people  j  and  by  no  means  in  a  person- 
al authority.  Their  power  is  to  declare  the  orders  of  the  Deity, 
and  goes  no  farther. 

XXVI.  If  at  present  we  compare  these  different  species  of 
government  we  shall  easily  perceive,  that  they  are  not  opposite  to 
each  other,  even  in  matters  of  religion.  The  government  of 
simple  direction,  which  we  give  to  pastors,  doestnot  clash  with 
the  sovereign  authority  ;  on  the  contrary,  it  may  find  an  advan- 
tage in  its  aid  and  assistance.  Thus  there  is  no  contradiction 
in  saying,  that  the  sovereign  governs  the  pastors,  and  that,  he 
is  also  governed  by  them,  provided  we  attend  to  the  different 
species  of  government.  These  are  the  general  principles  of  this 
important  doctrine,  and  it  is  easy  to  apply  them  to  particular 
cases. 

*  See  the  gospel  according   to  St.  Luke,  chap.  xii.  ver.  14.  first  epistle  to  the 
Corinthians,  chap.  x.  ver.  4.  Ephes,  chap.  vi.  ver,  1 7.  Philip,  iii.  ver.  »o. 

R 


130  THE  PRINCIPLES  OF 


CHAP.  IV. 

Of  the  power  of  the  sovereign  over  the  lives  and  fortunes  of  his  sub' 
jects  in  criminal  cases. 

I.  A  HE  principal  end  of  civil  government  and  society  is 
to  secure  to  mankind  all  their  natural  advantages,  and  especially 
their  lives.  This  end  necessarily  requires,  that  the  sovereign 
should  have  some  right  over  the  lives  of  his  subjects,  either  in 
an  indirect  manner,  for  the  defence  of  the  state,  or  in  a  direct 
manner,  for  the  punishment  of  crimes.  < 

II.  The  power  of  the  prince  over  the  lives  of  the  subjects, 
with  respect  to  the  defence  of  the  state,  regards  the  right  of  war, 
of  which  we  shall  treat  hereafter.  Here  we  intend  to  speak 
only  of  the  power  of  inflicting  punishments. 

III.  The  first  question,  which  presents  itself,  is  to  know  the 
origin  and  foundation  of  this  part  of  the  sovereign  power  ;  a 
question,  which  cannot  be  answered  without  some  difficulty. 
Punishment,  it  is  said,  is  an  evil,  which  a  person  suffers  in  a 
compulsive  way.  A  man  cannot  punish  himself;  and  conse- 
quently it  seems,  that  individuals  could  not  transfer  to  the  sov- 
ereign a  right,  which  they  had  not  over  themselves. 

IV.  Some  civilians  pretend,  that,  when  a  sovereign  inflicts 
punishments  on  his  subjects,  he  does  it  by  virtue  of  their  own 
consent  ;  because,  by  submitting  to  his  authority,  they  have 
promised  to  acquiesce  in  every  thing,  he  should  do  with  respecr 
to  them  ;  and  in  particular  a  subject,  who  determines  to  com- 
mit a  crime,  consents  thereby  to  suffer  the  punishment,  estab- 
lished against  the  delinquent. 

V.  But  it  seems  difficult  to  determine  the  right  of  the  sov- 
ereign on  a  presumption  of  this  nature,  especially  with  respect 
to  capital  punishments  •,  neither  is  it  necessary  to  have  recourse 
to  this  pretended  consent  of  criminals,  in  order  to  establish  the 
vindictive  power.  It  is  better  to  say,  that  the  right  of  punish- 
ing malefactors  derives  its  origin  from  that,  which  every  individ- 
ual originally  had  in  the  society  of  nature,  to  repel  the  injuries, 


POLITIC  LAW.  131 

committed  against  himself,  or  against  the  members  of  the  so- 
ciety ;  which  right  has  been  yielded  and  transferred  to  the 
sovereign. 

VI.  In  a  word  the  right  of  executing  the  laws  of  nature, 
and  of  punishing  those,  who  violate  them,  belongs  originally 
to  society  in  general,  and  to  each  individual  in  particular  ;  other- 
wise the  laws,  which  nature  and  reason  impose  on  man,  would 
be  entirely  useless  in  a  state  of  nature,  if  nobody  had  the  pow- 
er of  putting  them  in  execution,  or  of  punishing  the  violation 
of  them. 

VII.  Whoever  violates  the  laws  of  nature  testifies  thereby, 
that  he  tramples  on  the  maxims  of  reason  and  equity,  which 
God  has  prescribed  for  the  common  safety ;  and  thus  lie  be- 
comes an  enemy  of  mankind.  Since  therefore  every  man  has 
an  incontestable  right  to  take  care  of  his  own  preservation  and 
that  of  society,  he  may,  without  doubt,  inflict  on  such  a  person 
punishments,  capable  of  producing  repentance  in  him,  of  hin- 
dering him  from  committing  the  like  crimes  for  the  future,  and 
even  of  deterring  others  by  his  example.  In  a  word,  the  same 
laws  of  nature,  which  prohibit  vice,  do  also  confer  a  right  of 
pursuing  the  perpetrator  of  it,  and  of  punishing  him  in  a  just 
proportion. 

VIII.  It  is  true,  in  a  state  of  nature,  these  kinds  of  chas- 
tisements are  not  inflicted  by  authority,  and  the  criminal  might 
happen  to  shelter  himself  from  the  punishments,  he  has  to 
dread  from  other  men,  or  even  repel  their  attacks.  But  the 
right  of  punishment,  is  not  for  that  either  less  real,  or  less 
founded.  The  difficulty  of  putting  it  in  execution  does  not 
destroy  it.  This  was  one  of  the  inconveniences  of  the  primitive 
state,  which  men  have  efficaciously  remedied  by  the  establish- 
ment of  sovereignty. 

IX.  By  following  these  principles,  it  is  easy  to  comprehend, 
that  the  right  of  a  sovereign  to  punish  crimes  is  no  other,  than 
that  natural  right  which  human  society  and  every  individual  had 
originally  to  execute  the  law  of  nature,  and  to  take  care  of  their 
own  safety.  This  natural  right  has  been  yielded  and  transfer- 
red to  the  sovereign,  who,  by  means  of  the  authority,  with 
which  he  is  invested,  exercises  it  in  such  a  manner,  that  it  is 


13a  THE  PRINCIPLES  OF 

difficult  for  wicked  men  to  evade  it.  Besides,  whether  we  call 
this  natural  right  of  punishing  crimes  the  vindicative  power,  or 
wrhether  we  refer  it  to  a  kind  of  right  of  war,  is  a  matter  of  in- 
difference, neither  does  it  change  its  nature  on  that  account. 

X.  This  is  the  true  foundation  of  the  right  of  the  sovereign 
with  respect  Jo  punishments.  This  being  granted,  I  define  pun- 
ishment an  evil,  with  which  the  prince  threatens  those,  who  are 
disposed  to  violate  his  laws',  and  which  he  really  inflicts,  in  a 
just  proportion,  whenever  they  violate  them,  independently  of 
the  reparation  of  the  damage,  with  a  view  to  some  future  good, 
and  finally  for  the  safety  and  peace  of  society. 

XI.  I  say,  i .  that  punishment  is  an  evil,  and  this  evil  may  be 
of  a  different  nature,  according  as  it  affects  the  life  of  a  person, 
his  body,  his  reputation,  or  his  estate.  Besides,  it  is  indifferent 
whether  this  evil  consists  in  hard  and  toilsome  labour,  or  in 
suffering  something  painful. 

XII.  I  add  in  the  second  place,  that  it  is  the  sovereign,  who 
awards  punishments ;  not  that  every  punishment  in  general 
supposes  sovereignty,  but  because  we  are  here  speaking  of  the 
right  of  punishing  in  society,  and  as  the  branch  of  the  supreme 
power.  It  is  therefore  the  sovereign  alone,  who  is  empowered 
to  award  punishments  in  society  ;  but  individuals  cannot  do 
themselves  justice,  without  encroaching  on  the  rights  of  the 
prince. 

XIII.  I  say,  3.  with  which  the  sovereign  threatens,  &c.  to  de- 
note the  chief  intention  of  the  prince.  He  threatens  fir6t,  and 
then  punishes,  if  menaces  be  not  sufficient  to  prevent  the 
crime.  Hence  it  also  appears,  that  punishment  ever  supposes 
guilt,  and  consequently  we  ought  not  to  reckon  among  pun- 
ishments, properly  so  called,  the  different  evils,  to  which  men 
are  exposed,  without  having  antecedently  committed  a  crime. 

XIV.  I  add,  4.  that  punishment  is  inflicted  independently  of 
the  reparation  of  the  damage  to  show,  that  these  are  two  things 
very  distinct,  and  ought  not  to  be  confounded.  Every  crime 
is  attended  with  two  obligations  j  the  first  is  to  repair  the  inju- 
ry committed ;  and  the  second,  to  suffer  the  punishment ;  the 
delinquent  ought  to  satisfy  both.     It  is  also  to  be  observed  on 


POLITIC  LAW.  133 

this  occasion,  that  the  right  of  punishment  in  civil  society  is 
transferred  to  the  magistrate,  who  may  by  his  own  authority 
pardon  a  criminal ;  but  this  is  not  the  case  with  respect  to  the 
right  of  satisfaction  or  reparation  of  damages.  The  magis- 
trate cannot  acquit  the  offender  in  this  article,  and  the  injured 
person  always  retains  his  right  ;  so  that  he  is  wronged,  if  he 
be  hindered  from  obtaining  due  satisfaction. 

XV.  Lastly,  5.  by  saying,  that  punishment  is  inflicted  with  a 
view  to  some  good ;  we  point  out  the  end,  which  the  prince 
ought  to  propose  to  himself  in  inflicting  punishments,  and  this 
we  shall  more  particularly  explain. 

XVI.  The  sovereign,  as  such,  has  not  only  a  right,  but  is 
also  obliged  to  punish  crimes.  The  use  of  punishment  is  so 
far  from  being  contrary  to  equity,  that  it  is  absolutely  requisite 
for  the  public  tranquillity.  The  supreme  power  would  be  use- 
less, were  it  not  invested  with  a  right,  and  armed  with  a  force, 
sufficient  to  deter  the  wicked  by  the  apprehension  of  some  evil, 
and  to  make  them  suffer  that  evil,  when  they  injure  society. 
It  was  even  necessary,  that  this  power  should  extend  so  far,  as 
to  make  them  suffer  the  greatest  of  natural  evils,  which  is  death  1 
in  order  effectually  to  repress  the  most  daring  audaciousness, 
and,  as  it  were,  to  balance  the  different  degrees  of  human  wick- 
edness by  a  sufficient  counterpoise. 

XVII.  Such  is  the  right  of  the  sovereign.  But  if  he  has  a 
right  to  punish,  the  criminal  must  be  also  under  some  obligation 
in  this  respect ;  for  we  cannot  possibly  conceive  a  right  without 
an  obligation  corresponding  to  it.  But  wherein  does  this  obliga- 
tion of  the  criminal  consist  ?  Is  he  obliged  to  betray  himself, 
and  voluntarily  expose  himself  to  punishment  ?  I  answer,  that 
this  is  not  necessary  for  the  end,  proposed  in  the  establishment  of 
punishments  ;  nor  can  we  reasonably  require  that  a  man  should 
thus  betray  himself ;  but  this  does  not  hinder  him  from  being 
under  a  real  obligation. 

XVIII.  1.  It  is  certain,  that  when  there  is  a  simple  pecuniary 
punishment,  to  which  a  man  has  been  lawfully  condemned,  he 
ought  to  pay  it,  without  being  forced  by  the  magistrate  ;  not  on- 
ly prudence  requires  it,  but  also  the  rules  of  justice,  according 


*34 


THE  PRINCIPLES  OF 


to  which  we  are  bound  to  repair  any  injury  we  have  commit- 
ted, and  to  obey  lawful  judges. 

XIX.  2.  What  relates  to  corporeal,  and  especially  to  capital 
punishments,  is  attended  with  greater  diificulty.  Such  is  our 
natural  fondness  for  life,  and  aversion  to  infamy,  that  a  criminal 
cannot  be  under  an  obligation  of  accusing  himself  voluntarily, 
and  presenting  himself  to  punishment ;  and  indeed  neither  the 
public  good,  nor  the  rights  of  the  person,  entrusted  with  the  su- 
preme authority,  demand  it. 

XX.  3.  In  consequence  of  this  same  principle,  a  criminal 
may  innocently  seek  his  safety  in  flight,  and  is  not  obliged  to 
remain  in  prison,  if  he  perceives  the  doors  open,  or  if  he  can  ea- 
sily force  them.  But  it  is  not  lawful  for  him  to  procure  his 
liberty  by  the  commission  of  a  new  crime,  as  by  cutting  the 
throats  of  the  jailors,  or  by  killing  those  sent  to  apprehend  him. 

XXI.  4.  But  in  fine  if  we  suppose,  that  the  criminal  is 
known,  that  he  is  taken,  that  he  cannot  make  his  escape  from 
prison,  and  that,  after  a  mature  examination  or  trial,  he  is  con- 
victed of  the  crime,  and  consequently  condemned  to  condign 
punishment ;  he  is  in  this  case  certainly  obliged  to  undergo  the 
punishment,  and  to  acknowledge  the  lawfulness  of  his  sentence  ; 
so  that  there  is  no  injury  done  him,  nor  can  he  reasonably  com- 
plain of  any  one  but  himself  ;  much  less  can  he  withdraw  from 
punishment  by  violence,  and  oppose  the  magistrate  in  the 
exercise  of  his  right.  In  this  properly  consists  the  obligation  of 
the  criminal  with  respect  to  punishment.  Let  us  now  inquire 
more  particularly  into  the  end,  the  sovereign  ought  to  propose 
to  himself  in  inflicting  them. 

XXII.  In  general  it  is  certain,  that  the  prince  never  ought  to 
inflict  punishments  but  with  a  view  to  some  public  advantage. 
To  make  a  man  suffer  merely  because  he  has  done  a  thing,  and 
to  attend  only  to  what  has  passed,  is  a  piece  of  cruelty,  con- 
demned by  reason ;  for  after  all  it  is  impossible  that  the  fact 
should  be  undone.  In  short  the  right  of  punishing  is  a  part  of 
sovereignty ;  now  sovereignty  is  founded  ultimately  on  a  benefi- 
cent power.  It  follows  therefore,  that,  even  when  the  chief 
ruler  makes  use  of  his  power  of  the  sword,  he  ought  to  aim  at 


POLITIC  LAW.  135 

some  advantage  or  future  good,  agreeebly  to  what  is  required 
of  him  by  the  very  nature  and  foundation  of  his  authority. 

XXIII.  The  principal  end  of  punishment  is  therefore  the 
welfare  of  society ;  but  as  there  may  be  different  means  of  ar- 
riving at  this  end,  according,  to  different  circumstances,  the  sove- 
reign also,  in  inflicting  punishments,  proposes  different  and  par- 
ticular views,  ever  subordinate,  and  all  finally  reducible  to  the 
principal  end  abovementioned.  What  we  have  said  agrees  with 
the  observation  of  Grotius.*  '*  In  punishments  we  must  either 
u  have  the  good  of  the  criminal  in  view,  or  the  advantage 
"  of  him,  whose  interest  it  was  that  the  crime  should  not  have 
"  been  committed,  or  the  good  of  all  indifferently." 

XXIV.  Hence  the  sovereign  sometimes  proposes  to  correct 
the  criminal,  and  make  him  lose  the  vicious  habit,  so  as  to  cure 
the  evil  by  its  contrary,  and  to  take  away  the  sweets  of  the  crime 
by  the  bitterness  of  the  punishment.  This  punishment,  if  the 
criminal  is  reformed  by  it,  tends  to  the  public  good.  But,  if 
he  should  persevere  in  his  wickedness,  the  sovereign  must  have 
recourse  to  more  violent  remedies,  and  even  to  death. 

XXV.  Sometimes  the  chief  ruler  proposes  to  deprive  crimi- 
nals of  the  means  of  committing  new  crimes ;  as  for  example  by 
taking  from  them  the  arms,  which  they  might  use,  by  shutting 
them  up  in  prison,  by  banishing  them,  or  even  by  putting  them  to 
death.  At  the  same  time  he  takes  care  of  the  public  safety,  not 
only  with  respect  to  the  criminals  themselves,  but  also  with  re- 
gard to  those,  inclined  to  commit  the  like  crime,  in  deterring 
them  by  those  examples.  For  this  reason,  nothing  is  more  agree- 
able to  the  end  of  punishment,  than  to  inflict  it  with  such  a 
solemnity,  as  is  most  proper  to  make  an  impression  on  the  minds 
of  the  vulgar. 

XXVI.  All  these  particular  ends  of  punishment  ought  to  be 
constantly  subordinate,  and  referred  to  the  principal  end,  name- 
ly the  safety  of  the  public  ;  and  the  sovereign  ought  to  use  them 
all  as  means  of  obtaining  that  end  ;  so  that  he  should  not  have 
recourse  to  the  most  rigorous  punishments,  till  those  of  greater 
lenity  are  insufficient  to  procure  the  public  tranquillity. 

*  Lib.  ii,  cap.  xx.  §  6.  N.  a, 


136  THE  PRINCIPLES  OF 

XXVII.  But  here  a  question  arises,  whether  all  actions,  con- 
trary to  the  laws,  can  be  lawfully  punished  ?  I  answer,  that  the 
very  end  of  punishment,  and  the  constitution  of  human  nature, 
evince  there  may  be  actions,  in  themselves  evil,  which  however 
it  is  not  necessary  for  human  justice  to  punish. 

XXVIII.  And,  1.  acts  purely  internal,  or  simple  thoughts, 
which  do  not  discover  themselves  by  any  external  acts  prejudi- 
cial to  society  ;  for  example  the  agreeable  idea  of  a  bad  action, 
the  desire  of  committing  it,  the  design  of  it  without  proceeding 
to  the  execution,  &c.  All  these  are  not  subject  to  the  severity 
of  human  punishment,  even  though  it  should  happen,  that  they 
are  afterwards  discovered. 

XXIX.  On  this  subject  we  must  however  make  the  follow- 
ing remarks.  The  first  is,  that  if  this  kind  of  crimes  be  not 
subject  to  human  punishment,  it  is  because  the  weakness  of  man 
does  not  permit,  even  for  the  good  of  society,  that  he  should  be 
treated  with  the  utmost  rigour.  We  ought  to  have  a  just  re- 
gard for  humanity  in  things,  which  though  bad  in  themselves, 
do  not  greatly  affect  the  public  order  and  tranquillity.  The 
second  remark,  is,  that,  though  acts  purely  internal  are  not  sub- 
ject to  civil  punishment,  we  must  not  for  this  reason  con- 
clude, that  these  acts  are  not  under  the  direction  of  the  civil 
laws.  "We  have  before  established  the  contrary.*  In  a  word 
it  is  evident,  that  the  laws  of  nature  expressly  condemn  such  ac- 
tions, and  that  they  are  punished  by  the  Deity. 

XXX.  2.  It  would  be  too  severe  to  punish  every  peccadillo ; 
since  human  frailty,  notwithstanding  the  greatest  caution  and  at- 
tention, cannot  avoid  a  multitude  of  slips  and  infirmities.  This 
is  a  consequence  of  the  toleration  due  to  humanity. 

XXXI.  3.  In  a  word,  we  must  necessarily  leave  unpunished 
those  common  vices,  which  are  the  consequences  of  a  general 
corruption ;  as  for  instance  ambition,  avarice,  inhumanity,  in- 
gratitude, hypocrisy,  envy,  pride,  wrath,  &c.  For  if  a  sovereign 
wanted  to  punish  such  dispositions  with  i-igor,  he  would  be  re- 
duced to  the  necessity  of  reigning  in  a  desert.  It  is  sufficient 
to  punish  those  vices,  when  they  prompt  men  to  enormous  and 
©vert  acts. 

*  Chap.  i.  §  21,  &c, 


POLITIC  LAW.  137 

XXXII.  It  is  not  even  always  necessary  to  punish  crimes 
in  themselves  punishable,  for  there  are  cases,  in  which  the 
sovereign  may  pardon ;  and  of  this  we  may  judge  by  the  very 
end  of  punishment. 

XXXI II.  The  public  good  is  the  ultimate  end  of  all  punsh- 
ment.  If  therefore  there  are  circumstances,  in  which  by  par- 
doning as  much  or  more  advantage  is  procured,  than  by  punish- 
ing, then  there  is  no  obligation  to  punish,  and  the  sovereign  e- 
ven  ought  to  show  clemency.  Thus  if  the  crime  be  concealed, 
or  be  only  known  to  a  few,  it  is  not  always  necessary,  nay  it 
would  sometimes  be  dangerous  to  make  it  public  by  punish- 
ment; for  many  abstain  from  evil,  rather  from  their  ignorance 
of  vice,  than  from  a  knowledge  and  love  of  virtue.  Cicero 
observes,  with  regard  to  Solon's  having  no  law  against  parri- 
cide, that  this  silence  of  the  legislator  has  been  looked  upon  as 
a  great  mark  of  prudence  ;  for  as  much  as  he  made  no  prohi- 
bition of  a  thing,  of  which  there  had  been  no  example,  lest,  by 
speaking  of  it,  he  should  seem  to  give  the  people  a  notion  of 
committing  it,  rather  than  deter  them  from  it. 

We  may  also  consider  the  personal  services,  which  the  crim- 
inal, or  some  of  his  family,  have  done  to  the  state,  and  wheth- 
er he  can  still  be  of  great  advantage  to  it,  so  that  the  impres- 
soin  made  by  the  sight  of  his  punishment  be  not  likely  to  pro- 
duce so  much  good,  as  he  himself  is  capable  of  doing.  Thus 
at  sea,  when  the  pilot  has  committed  a  crime,  and  there  is 
none  on  board  capable  of  navigating  the  ship,  it  would  be  de- 
stroying all  those  in  the  vessel  to  punish  him.  This  example 
may  also  be  applied  to  the  general  of  an  army. 

In  a  word  the  public  advantage,  which  is  the  true  measure 
of  punishment,  sometimes  requires,  that  the  sovereign  should 
pardon,  because  of  the  great  number  of  criminals.  The  pru- 
dence of  government  demands,  that  the  justice,  established  for 
the  preservation  of  society,  should  not  be  exercised  in  such  a 
manner,  as  to  subvert  the  state. 

XXXIV.  All  crimes  are  not  equal,  and  it  is  but  equity  there 
should  be  a  due  proportion  between  the  crime  and  the  punish- 
ment. We  may  judge  of  the  greatness  of  a  crime  in  general 
by  its  object,  by  the  intention  and  malice  of  the  criminal  and 

S 


138  THE  PRINCIPLES  OF 

by  the  prejudice  arising  to  society  from  it ;  and  to  this  latter 
consequence  the  two  others  must  be  ultimately  referred. 

XXXV.  According  to  the  dignity  of  the  object  the  action 
is  more  or  less  criminal.  We  must  place  in  the  first  class  those 
crimes,  which  interest  society  in  general  ;  the  next  are  those, 
which  disturb  the  order  of  civil  society  ;  and  last  of  all  those, 
which  relate  to  individuals.  The  latter  are  more  or  less  hei- 
nous, according  to  the  value  of  the  thing,  of  which  they  de- 
prive us.  Thus  he,  who  slays  his  father,  commits  a  more  hor- 
rid murder,  than  if  he  had  killed  a  stranger.  He,  who  insults 
a  magistrate  is  more  to  blame  than  if  he  had  insulted  his  equal. 
A  person,  who  adds  murder  to  robbery,  is  more  guilty  than  he, 
who  only  strips  the  traveller  of  his  money. 

XXXVI.  The  greater  or  less  degree  of  malice  also  contri- 
butes very  much  to  the  enormity  of  the  crime,  and  is  to  be  de- 
duced from  several  circumstances. 

1.  From  the  motives,  which  engage  mankind  to  commit  a 
crime,  and  which  may  be  more  or  less  easy  to  resist.  Thus 
he,  who  robs  or  murders  in  cold  blood,  is  more  culpable  than 
he,  who  yields  to  the  violence  of  some  furious  passion. 

2.  From  the  particular  character  of  the  criminal,  which,  be- 
sides the  general  reasons,  ought  to  retain  him  in  his  duty  : 
"  The  higher  a  man's  birth  is,  says  Juvenal,  or  the  more  exalted 
"  he  is  in  dignity,  the  more  enormous  is  the  crime  he  commits.* 
"  This  takes  place  especially  with  respect  to  princes,  and  so 
"  much  the  more,  because  the  consequences  of  their  bad  ac- 
"  tions  are  fatal  to  the  state,  from  the  number  of  persons,  who 
"  endeavor  to  imitate  them."  This  is  the  judicious  remark 
made  by  Cicero.f  The  same  observation  may  also  be  applied 
to  magistrates  and  clergymen. 

*   Omne  animi  nlium  tanto  conspeclius  in  se 

Crimen  habe/,  quanlo  major ',  qui  peccal,  habetur. 

Juv.  Sat.  viii.  140,  141. 

More  public  scandal  vice  attends, 

As  be  is  great  and  noble,  who  offends. 
t  De  Leg.  lib.  Hi.  cap.  14.  Nee  enim  tantuin  mali  est  peccare  prin- 
cipes  quanquam  est  magnum  hoc  per  seipsum  malum  ;  quantum  illud, 
quod  permulti  imitatores  priucipium  existunt ;  quo  perniciosius  de  repub- 
lica  merentur  vitiosi  principes,  quod  non  solum  vitia  concipiunt  ipsi,  sed 
ea  inlundunt  in  civitatem  Neque  solum  obsunt,  quod  ipsi  corrumpnn- 
tur,  sed  etiam  quod  corrumpunt ;  plusque  exemplo,  quam  peccato,  no- 
cent. 


POLITIC  LAW.  139 

3.  We  must  also  consider  the  circumstances  of  time  and 
place,  in  which  the  crime  has  been  committed,  the  manner  of 
committing  it,  the  instruments  used  for  that  purpose,  &c. 

4t.  Lastly  we  are  to  consider  whether  the  criminal  has  made 
a  custom  of  committing  such  a  crime,  or  if  he  is  but  rarely 
guilty  of  it,  whether  he  has  committed  it  of  his  own  accord, 
or  been  seduced  by  others,  &c. 

XXXVII.  We  may  easily  perceive  that  the  difference  of 
these  circumstances  interests  the  happiness  and  tranquillity  of 
society,  and  consequently  either  augments  or  diminishes  the 
enormity  of  the  crime. 

XXXVIII.  There  are  therefore  crimes  less  or  greater  than 
others  ;  and  consequently  they  do  not  all  deserve  to  be  pu- 
nished with  equal  severity  ;  but  the  kind  and  precise  degree  of 
punishment  depend  on  the  prudence  of  the  sovereign.  The 
following  are  the  principal  rules,  by  which  he  ought  to  direct- 
ed. 

1.  The  degree  of  punishment  ought  ever  to  be  proportioned 
to  the  end  of  inflicting  it,  that  is,  to  repress  the  insolence  and 
malignity  of  the  wicked,  and  to  procure  the  internal  peace  and 
safety  of  the  state.  It  is  upon  this  principle,  that  we  must  aug- 
ment or  diminish  the  rigour  of  punishment.  The  punishment 
is  too  rigorous,  if  we  can  by  milder  means  obtain  the  end  pro- 
posed ;  and,  on  the  contrary,  is  too  moderate,  when  it  has 
not  a  force  sufficient  to  produce  these  effects,  and  when  the 
criminals  themselves  despise  it. 

2.  According  to  this  principle,  every  crime  may  be  punished 
as  the  public  good  requires,  without  considering  whether  there 
be  an  equal  or  less  punishment  for  another  crime,  which  in  itself, 
appears  more  or  less  heinous.  Thus  robbery,  for  instance,  is  of 
its  own  nature  a  less  crime  than  murder  ;  and  yet  highwaymen 
may,  without  injustice,  be  punished  with  death,  as  well  as  mur- 
derers. 

3.  The  equality,  which  the  sovereign  ought  ever  to  observe 
in  the  exercise  of  justice,  consists  in  punishing  those  alike,  who 
have  trespassed  alike  ;  and  in  not  pardoning  a  person,  without 
very  good  reason,  who  has  committed  a  crime,  for  which  oth- 
ers have  been  punished. 


140  THE  PRINCIPLES  OF 

4.  It  must  also  be  observed,  that  we  cannot  multiply  the 
kinds  and  degrees  of  punishment  in  infinitum  ;  and,  as  there  is 
no  greater  punishment  than  death,  it  is  necessary,  that  certain 
crimes,  though  unequal  in  themselves,  should  be  equally  sub- 
ject to  capital  punishment.  All,  that  can  be  said,  is,  that  death 
may  be  more  or  less  terrible,  according  as  we  employ  a  milder 
or  shorter  method  to  deprive  a  person  of  life. 

5.  We  ought,  as  much  as  possible,  to  incline  to  the  merciful 
side,  when  there  are  not  strong  reasons  for  the  contrary.  This 
is  the  second  part  of  clemency.  The  first  consists  in  a  total 
exemption  from  punishment,  when  the  good  of  the  state  per- 
mits it.     This  is  also  one  of  the  rules  of  the  Roman  law.* 

6.  On  the  contrary,  it  is  sometimes  necessary  and  convenient 
to  heighten  the  punishment,  and  to  set  such  an  example,  as  may 
intimidate  the  wicked,  when  the  evil  can  be  prevented  only  by 
violent  remedies.! 

7.  The  same  punishment  does  not  make  the  same  impres- 
sion on  all  kinds  of  people,  and  consequently  has  not  the  same 
force  to  deter  them  from  vice.  We  ought  therefore  to  consi- 
der, both  in  the  general  penal  sanction  and  in  the  application  of 
it,  the  person  of  the  criminal,  and  in  that  all  those  qualities  of 
age,  sex,  state,  riches,  strength,  and  the  like,  which  may  either 
increase  or  diminish  the  sense  of  punishment.  A  particular  fine, 
for  instance,  will  distress  a  beggar,  while  it  is  nothing  to  a  rich 
man.  The  same  mark  of  ignominy  will  be  very  mortifying  to  a 
person  of  honor  and  quality,  which  would  pass  for  a  trifle  with 
a  vulgar  fellow.  Men  have  more  strength  to  support  punish- 
ments than  women,  and  full  grown  people  more  than  those  of 
tender  years,  &c.  Let  us  also  observe,  that  it  belongs  to  the 
justice  and  prudence  of  government,  always  to  follow  the  order 
of  judgment  of  the  judiciary  procedure  in  the  infliction  of 
punishments.  This  is  necessary,  not  only  that  we  may  not  com- 
mit injustice  in  an  affair  of  such  importance,  but  also  that  the 
sovereign  may  be  secured  against  all  suspicion  of  injustice  and 

*  In  pccualibus  causis,  benignus  interpretandum  est;  Lib.  cv.  i  2.  Q\ 
de  Reg-  Jur.     Vid.  sup.  i  33. 

+  Nonnuniquam  evenit,  ut  aliquorurn  maleficiorum  supplicia  exacer- 
bautur,  quoties  nimirum,  raultis  personis  grassantibus,  exemplo  opus  sit. 
Lib.  xvi.  i  10.  ff.  de  poenis. 


POLITIC  LAW.  141 

partiality.  However  there  are  sometimes  extraordinary  and 
pressing  circumstances,  where  the  good  of  the  state  and  the  pub- 
lic safety  do  not  permit  us  exactly  to  observe  all  the  formalities 
of  the  criminal  procedure  ;  and  provided,  in  those  circumstan- 
ces, the  crime  be  duly  proved,  the  sovereign  may  judge  sum- 
marily, and  without  delay  punish  a  criminal,  whose  punishment 
cannot  be  deferred  without  imminent  danger  to  the  state.  Last- 
ly it  is  also  a  rule  of  prudence,  that  if  we  cannot  chastise  a  cri- 
minal without  exposing  the  state  to  great  danger,  the  sovereign 
ought  not  only  to  grant  a  pardon,  but  also  to  do  it  in  such  a 
manner,  that  it  may  appear  rather  to  be  the  effect  of  clemency 
than  of  necessity. 

XXXIX.  What  we  have  said  relates  to  punishments,  inflict- 
ed for  crimes,  of  which  a  person  is  the  sole  and  proper  author. 
With  respect  to  crimes  committed  by  several,  the  following  ob- 
servations may  serve  as  principles. 

1.  It  is  certain  that  those,  who  are  really  accomplices  in  the 
crime,  ought  to  be  punished  in  proportion  to  the  share  they 
have  in  it,  and  according  as  they  ought  to  be  considered  as 
principal  causes,  or  subordinate  and  collateral  instruments. 
In  these  cases,  such  persons  suffer  rather  for  their  own  crime, 
than  that  of  another. 

2.  As  for  crimes  committed  by  a  body  or  community,  those 
only  are  really  culpable,  who  have  given  their  actual  consent 
to  them  ;  but  they,  who  have  been  of  a  contrary  opinion,  are 
absolutely  innocent.  Thus  Alexander,  having  given  orders  to 
sell  all  the  Thebans  after  the  taking  of  their  city,  excepted 
those,  who,  in  the  public  deliberations,  had  opposed  the  break- 
ing of  the  alliance  with  the  Macedonians. 

3.  Hence  it  is,  that,  with  respect  to  crimes  committed  by  a 
multitude,  reasons  of  state  and  humanity  direct,  that  we  should 
principally  punish  those,  who  are  ringleaders,  and  pardon  the 
rest.  The  severity  of  the  sovereign  to  some  will  repress  the 
audaciousness  of  the  most  resolute  ;  and  his  clemency  to  others 
will  gain  him  the  hearts  of  the  multitude.* 

4.  If  the  ringleaders  have  sheltered  themselves  by  flight,  or 
otherwise,  or  if  they  have  all  an  equal  share  in  the  crime,  we 

*  Quntil.  Dcclam.  cap.  vii.  p.  m.  "237. 


142  THE  PRINCIPLES  OF 

must  have  recourse  to  a  decimation,  or  other  means,  to  punish 
some  of  them.  By  this  method  the  terror  reaches  all,  while 
but  few  fall  under  the  punishment. 

XL.  Besides,  it  is  a  certain  and  inviolable  rule,  that  no  per- 
son can  be  lawfully  punished,  for  the  crime  of  another,  in  which 
-  he  has  had  no  share.     Ail  merit  and  demerit  is  entirely  perso- 
nal and  incommunicable  ;  and  we  have  no  right  to  punish  any 
but  those,  who  deserve  it. 

XLI.  It  sometimes  happens  however,  that  innocent  persons 
suffer  on  account  of  the  crimes  of  others  ;  but  we  must  make 
two  remarks  on  this  subject. 

1.  Not  every  thing,  that  occasions  uneasiness,  pain,  or  loss 
to  a  person,  is  properly  a  punishment ;  for  example  when  sub- 
jects suffer  some  grievances  from  the  miscarriages  and  crimes 
of  their  prince,  it  is  not,  in  respect  to  them  a  punishment,  but 
a  misfortune. 

The  second  remark  is,  that  these  kinds  of  evils,  or  indirect 
punishments,  if  we  may  call  them  so,  are  inseparable  from  the 
constitution  of  human  affairs. 

XLII.  Thus  if  we  confiscate  the  effects  of  a  person,  his 
children  suffer  indeed  for  it ;  but  it  is  not  properly  a  punish- 
ment to  them,  since  those  effects  ought  to  belong  to  them  only 
on  supposition  that  their  father  had  kept  them  till  his  death. 
In  a  word  we  must  either  almost  entirely  abolish  the  use  of 
punishments,  or  acknowledge,  that  these  inconveniencies,  in- 
separable from  the  constitution  of  human  affairs,  and  from  the 
particular  relations,  which  men  have  with  each  other,  have 
nothing  in  themselves  unjust. 

XLIII.  Lastly  it  is  to  be  observed,  that  there  are  crimes  so 
enormous,  so  essentially  affecting  in  regard  to  society,  that  the 
public  good  authorises  the  sovereign  to  take  the  strongest  pre- 
cautions against  them,  and  even,  if  necessary,  to  make  part  of 
ihe  punishment  fall  on  the  persons  most  dear  to  the  criminal. 
Thus  the  children  of  traitors,  or  state  criminals,  may  be  exclu- 
ded from  honors  and  preferments.  The  father  is  severely  punish- 
ed by  this  method,  since  he  sees  he  is  the  cause,  why  the  persons 
dearest  to  him  are  reduced  to  live  in  obscurity.  But  this  is  not 
properly  a  punishment  in  regard  to  the  children  :  for  the  sove- 


POLITIC  LAW.  Ho 

reign,  having  a  right  to  give  public  employments  to  whom  he 
pleases,  may,  when  the  public  good  requires  it,  exclude  even 
persons,  who  have  done  nothing  to  render  themselves  unworthy 
of  these  preferments.  I  confess  that  this  is  a  hardship,  but 
necessity  authorises  it,  to  the  end  that  the  tenderness  of  a  pa- 
rent for  his  offspring  may  render  him  more  cautious  to  under- 
take nothing  against  the  state.  But  equity  ought  always  to 
direct  those  judgments,  and  to  mitigate  them  according  to  cir- 
cumstances. 

XLIV.  I  am  not  of  opinion,  that  we  can  exceed  these  bounds, 
neither  does  the  public  good  require  it.  It  is  therefore  a  real 
piece  of  injustice,  established  among  several  nations,  namely  to 
banish  or  kill  the  children  of  a  tyrant  or  traitor,  and  sometimes 
all  his  relations,  though  they  were  no  accomplices  in  his  crimes. 
This  is  sufficient  to  give  a  right  idea  of  the  famous  law  of 
Arcadius*  the  Christian  emperor. 

CHAP.  V. 

Of  the  potver  of  the  sovereigns  over  the  Bona  Reipublicse,  or  the 
goods  contained  in  the  commonivealth. 

I.  X  HE  right  of  the  sovereign  over  the  goods,  contained 
in  the  commonwealth,  relates  either  to  the  goods  of  the  sub- 
ject, or  to  those,  which  belong  to  the  commonwealth  itself,  as 
such. 

II.  The  right  of  the  prince  over  the  goods  of  the  subject 
may  be  established  two  different  ways  ;  for  either  it  may  be 
founded  on  the  very  nature  of  the  sovereignty,  or  on  the  par- 
ticular manner  in  which  it  was  acquired. 

III.  If  we  suppose,  that  a  chief  ruler  possesses,  with  a  full 
right  of  property,  all  the  goods  contained  in  the  commonwealth, 
and  that  he  has  collected  as  it  were  his  own  subjects,  who  ori- 
ginally hold  their  estates  of  him,  then  it  is  certain,  that  the  sove- 
reign has  as  absolute  a  power  over  those  estates,  as  every  mas- 
ter of  a  family  has  over  his  own  patrimony  ;  and  that  the  sub- 
jects cannot  enjoy  or  dispose  of  those  goods  or  estates,  but  so 

*  Cod.  and  L  Jul.  Maj.  lib.  ix.  tit.  8.  leg.  5. 


144  THE  PRINCIPLES  OF 

far  as  the  sovereign  permits.  In  these  circumstances,  while 
the  sovereign  has  remitted  nothing  of  his  right  hy  irrevocable 
grants,  his  subjects  possess  their  estates  in  a  precarious  manner, 
revocable  at  pleasure,  whenever  the  prince  thinks  fit ;  they  can 
only  supply  themselves  with  sustenance  and  other  necessaries 
from  them.  In  this  case  the  sovereignty  is  accompanied  with 
a  right  of  absolute  property. 

IV.  But,  1.  this  manner  of  establishing  the  power  of  the 
sovereign  over  the  goods  of  the  subjects,  cannot  be  of  great 
use  ;  and  if  it  has  sometimes  taken  place,  it  has  only  been 
among  the  oriental  nations,  who  easily  submit  to  a  despotic 
government. 

2.  Experience  teaches  us,  that  this  absolute  dominion  of  the 
sovereign  over  the  goods  of  the  subject  does  not  tend  to  the  ad- 
vantage of  the  state.  A  modern  traveller  observes,  that  the 
countries,  where  this  propriety  of  the  prince  prevails,  however 
beautiful  and  fertile  of  themselves,  become  daily  more  desolate, 
poor,  and  barbarous  ;  or  that  at  least  they  are  not  so  flourishing, 
as  most  of  the  kingdoms  of  Europe,  where  the  subjects  possess 
their  estates  as  their  own  property,  exclusive  of  the  prince. 

3.  The  supreme  power  does  not  of  itself  require,  that  the 
prince  should  have  this  absolute  dominion  over  the  estates  of  his 
subjects.  The  property  of  individuals  is  prior  to  the  formation 
of  states,  and  there  is  no  reason,  which  can  induce  us  to  sup- 
pose, that  those  individuals  entirely  transferred  to  the  sovereign 
the  right  they  had  over  their  own  estates  ;  on  the  contrary,  it  is 
to  secure  a  quiet  and  easy  possession  of  their  properties,  that 
they  have  instituted  government  and  sovereignty. 

4.  Besides,  if  we  should  suppose  an  absolute  sovereignty  ac- 
quired by  arms,  yet  this  does  not  of  itself  give  an  arbitrary 
dominion  over  the  property  of  the  subject.  The  same  is  true 
even  of  a  patrimonial  sovereignty,  which  confers  a  right  of 
alienating  the  crown  ;  for  this  right  of  the  sovereign  does  not 
hinder  the  subject  from  enjoying  his  respective  properties. 

V.  Let  us  therefore  conclude,  that  in  general  the  right  of 
the  prince  over  the  goods  of  the  subjects  is  not  an  absolute  do- 
minion over  their  properties,  but  a  right  founded  on  the  nature 
and  end  of  sovereignty,  which  invests  him  with  the  power  of 


POLITIC  LAW.  145 

disposing  of  those  estates  in  different  manners,  for  the  benefit  of 
individuals,  as  well  as  of  the  state,  without  depriving  the  sub- 
jects of  their  right  to  their  properties,  except  in  cases  where  it 
is  absolutely  necessary  for  the  public  good. 

VI.  This  being  premised,  the  prince,  as  sovereign,  has  a 
right  over  the  estates  of  his  subjects  principally  in  three  differ- 
ent manners. 

The  first  consists  in  regulating,  by  wise  laws,  the  use,  which 
every  one  ought  to  make  of  his  goods  and  estate,  for  the  ad- 
vantage of  the  state  and  that  of  individuals. 

The  second,  in  raising  subsidies  and  taxes. 

The  third,  in  using  the  rights  of  sovereign  or  transcendental 
property.* 

VII.  To  the  first  head  we  must  reduce  all  sumptuary  laws,  by 
which  bounds  are  set  to  unnecessary  expenses,  which  ruin  fami- 
lies and  consequently  impoverish  the  state.  Nothing  is  more 
conducive  to  the  happiness  of  a  nation,  or  more  worthy  of  the 
care  of  the  sovereign,  than  to  oblige  the  subjects  to  economy, 
frugality,  and  labor. 

When  luxury  has  once  prevailed  in  a  nation,  the  evil  becomes 
almost  incurable.  As  too  great  authority  spoils  kings,  so  luxu- 
ry poisons  a  whole  people.  The  most  superfluous  things  are 
looked  upon  as  necessary,  and  new  necessities  are  daily  invented. 
Thus  families  are  ruined,  and  individuals  disabled  from  contrib- 
uting to  the  expenses  necessary  for  the  public  good.  An  indi- 
vidual, for  instance,  who  spends  only  three  fifths  of  his  income, 
and  pays  one  fifth  for  the  public  service,  will  not  hurt  himself, 
since  he  lays  up  a  fifth  to.  increase  his  stock.  But  if  he  spend 
all  his  income,  he  either  cannot  pay  the  taxes,  or  he  must  break 
in  upon  his  capital. 

Another  inconvenience  is,  that  not  only  the  estates  of  indi- 
viduals are  squandered  away  by  luxury,  but,  what  is  still  worse, 
they  are  generally  carried  abroad  into  foreign  countries,  in  pur- 
suit of  those  things,  which  flatter  luxury  and  vanity. 

The  impoverishing  of  individuals  produces  another  evil  for  the 
state,  by  hindering  marriages.  On  the  contrary,  people  are 
*  Dominium  eminens. 


i46  THE  PRINCIPLES  OF 

more  inclined  to  marriage,  when  a  moderate  expense  is  suffi- 
cient for  the  support  of  a  family. 

This  the  emperor  Augustus  was  very  sensible  of ;  for  when 
he  wanted  to  reform  the  manners  of  the  Romans,  among  the 
various  edicts,  which  he  either  made  or  renewed,  he  reestablish- 
ed both  the  sumptuary  law,  and  that,  which  obliged  people  to 
marry. 

When  luxury  is  once  introduced,  it  soon  becomes  a  general 
evil,  and  the  contagion  insensibly  spreads  from  the  first  men  of  the 
state  to  the  very  dregs  of  the  people.  The  king's  relations  want 
to  imitate  his  magnificence ;  the  nobility,  that  of  his  relations  ; 
the  gentry  or  middle  sort  of  people,  endeavour  to  equal  the  no- 
bility •,  and  the  poor  would  fain  pass  for  gentry.  Thus  every 
one  living  beyond  his  income,  the  people  are  ruined,  and  all  or- 
ders and  distinctions  confounded. 

History  informs  us,  that  in  all  ages  luxury  has  been  one  of 
the  causes,  which  has  more  or  less  contributed  to  the  ruin  and 
clecay  even  of  the  most  powerful  states,  because  it  sensibly  en- 
ervates courage,  and  destroys  virtue.  Suetonius  observes,  that 
Julius  Ca;s;!.r  invaded  the  liberties  of  his  country  only  in  conse- 
quence of  not  knowing  how  to  pay  the  debts,  he  had  contracted 
by  his  excessive  prodigality,  nor  how  to  support  his  expensive 
way  of  living.  Many  sided  with  him,  because  they  had  not 
wherewith  to  supply  their  luxury,  to  which  they  had  been  ac- 
customed, and  they  were  in  hopes  of  getting  by  the  civil  wars 
enough  to  supply  their  former  extravagance.* 

We  must  observe  in  fine,  that,  to  render  the  sumptuary 
laws  more  effectual,  princes  and  magistrates  ought,  by  the  ex- 
ample of  their  own  moderation,  to  put  those  out  of  counte- 
nance, who  love  extravagance,  and  to  encourage  the  prudent, 
who  would  easily  submit  to  follow  the  pattern  of  a  good  econ- 
omy and  honest  frugality. 

VIII.  To  this  right  of  the  sovereign  of  directing  the  subjects 

in  the  use  of  their  estates  and   goods,  we  must  also  reduce  the 

laws  against  gaming  and  prodigality,  those,  which  set  bounds  to 

grants,  legacies,  and  testaments ;  and  in  fine  those  against  idle 

*  See  Sail,  ad  Cssar.  do  Repub.  ordinand. 


POLITIC  LAW.  147 

and  lazy  people,  and  against  persons,  who  suffer  their  estates 
to  run  to  ruin,  purely  by  carelessness  and  neglect. 

IX.  Above  all,  it  is  of  great  importance  to  use  every  endeav- 
or to  banish  idleness,  that  fruitful  source  of  disorders.  The 
want  of  a  useful  and  honest  occupation  is  the  foundation  of 
an  infinite  number  of  mischiefs.  The  human  mind  cannot  re- 
main in  a  state  of  inaction,  and,  if  it  be  not  employed  on  some- 
thing good,  it  will  inevitably  apply  itself  to  something  bad,  as 
the  experience  of  all  ages  demonstrates.  It  were  therefore  to 
be  wished,  that  there  were  laws  against  idleness,  to  prevent  its 
pernicious  effects ;  and  that  no  person  was  permitted  to  live 
without  some  honest  occupation  either  of  the  mind  or  body. 
Especially  young  people,  who  aspire  after  political,  ecclesiastical, 
or  military  employments,  ought  not  to  be  permitted  to  pass,  in 
shameful  idleness,  the  time  of  their  life  most  proper  for  the 
study  of  morality,  politics,  and  religion.  It  is  obvious  that  a 
wise  prince  may,  from  these  reflections,  draw  very  important 
instructions  for  government. 

X.  The  second  manner,  in  which  the  prince  can  dispose  of 
the  goods  or  estates  of  his  subjects,  is,  by  demanding  taxes  or 
subsidies  of  them.  That  the  Sovereign  has  this  right  will  evi- 
dently appear,  if  we  consider,  that  taxes  are  no  more  than  a 
contribution,  which  individuals  pay  to  the  state  for  the  preser- 
vation and  defence  of  their  lives  and  properties,  a  contribution 
absolutely  necessary  both  for  the  ordinary  and  extraordinary  ex- 
penses of  government,  which  the  sovereign  neither  can  or  ought 
to  furnish  out  of  his  own  fund.  He  must  therefore,  for  that 
end  and  purpose,  have  a  right  to  take  away  part  of  the  goods  of 
the  subject  by  way  of  tax. 

XI.  Tacitus  relates  a  memorable  story  on  this  subject. 
"  Nero,  he  says,  once  thought  to  abolish  all  taxes,  and  to  make 
"  this  magnificent  grant  to  the  Roman  people ;  but  the 
u  senate  moderated  his  ardour  ;  and,  after  having  commended 
"  the  emperor  for  his  generous  design,  they  told  him,  that  the 
"  empire  would  inevitably  fall,  if  its  foundations  were  sapped  ; 
"  that  most  of  the  taxes  had  been  established  by  the  con- 
"  suls  and  tribunes  during  the  very  height  of  liberty  in  the 
u  times  of  the  republic,  and  that  they  were  the  only  means  of 


148  THE  PRINCIPLES  OF 

"  supplying  the  immense  expenses  necessary  for  the  support  of 
"  so  great  an  empire." 

XII.  Nothing  is  then  generally  more  unjust  and  unreasona- 
ble, than  the  complaints  of  the  populace,  who  frequently  as- 
cribe their  misery  to  taxes,  without  reflecting,  that  these  are,  on 
the  contrary,  the  foundation  of  the  tranquillity  and  safety  of  the 
state,  and  that  they  cannot  refuse  to  pay  them  without  prejudic- 
ing their  own  interests. 

XIII.  However  the  end  and  prudence  of  civil  government 
require  not  only,  that  the  people  should  not  be  overcharged  in 
this  respect,  but  also  that  the  taxes  should  be  raised  in  as  gentle 
and  imperceptible  a  manner  as  possible. 

XIV.  And  i.  the  subjects  must  be  equally  charged,  that  they 
may  have  no  just  reason  of  complaint.  A  burden,  equally  sup- 
ported by  all,  is  lighter  to  every  individual ;  but,  if  a  considera- 
ble number  release  or  excuse  themselves,  it  becomes  much  more 
heavy  and  insupportable  to  the  rest.  As  every  subject  equally 
enjoys  the  protection  of  the  government,  and  the  safety,  which 
it  procures ;  it  is  just  that  they  should  all  contribute  to  its  sup- 
port in  a  proper  equality. 

XV.  2.  It  is  to  be  observed  however,  that  this  equality  does 
not  consist  in  paying  equal  sums  of  money,  but  in  equally  bear- 
ing the  burden,  imposed  for  the  good  of  the  state  ;  that  is,  there 
must  be  a  just  proportion  between  the  burden  of  the  tax  and 
the  benefit  of  peace  ;  for  though  all  equally  enjoy  peace,  yet 
the  advantages,  which  all  reap  from  it,  are  not  equal. 

XVI.  3.  Every  man  ought  therefore  to  be  taxed  in  propor- 
tion to  his  income,  both  in  ordinary  and  extraordinary  exigen- 
cies. 

XVII.  4.  Experience  shows,  that  the  best  method  of  rais- 
ing taxes  is  to  lay  them  on   things,  daily  consumed  in  life. 

XVIII.  5.  As  to  merchandizes  imported,  it  is  to  be  observ- 
ed, that,  if  they  are  not  necessary,  but  only  subservient  to  lux- 
ury, very  great  duties  may  justly  be  laid  on  them. 

XIX.  6.  When  foreign  merchandizes  consist  of  such  thing*, 
as  may  grow,  or  be  manufactured  at  home,  by  the  industry  and 
application  of  our  own  people,  the  imposts  ought  to  be  raised 
higher  upon  those  articles. 


POLITIC  LAW. 


149 


XX.  7.  With  regard  to  the  exportation  of  commodities  of 
our  own  growth,  if  it  be  the  interest  of  the  state,  that  they 
should  not  go  out  of  the-country,  it  may  be  right  to  raise  the 
customs  upon  them  ;  but  on  the  contrary,  if  it  is  for  the  public 
advantage,  that  they  should  be  sent  to  foreign  markets,  then  the 
duty  of  exportation  ought  to  be  diminished,  or  absolutely  taken 
away.  In  some  countries,  by  a  wise  piece  of  policy,  rewards 
are  given  to  the  subjects,  who  export  such  commodities,  as  are 
in  too  great  plenty,  and  far  surpassing  the  wants  of  the  inhab- 
itants. 

XXI.  8.  In  a  word,  in  the  application  of  all  these  maxims, 
the  sovereign  must  attend  to  the  good  of  trade,  and  take  all  prop- 
er measures  to  make  it  flourish. 

XXII.  It  is  unnecessary  to  observe,  that  the  right  of  the  sov- 
ereign, with  respect  to  taxes,  being  founded  on  the  wants  of  the 
state,  he  ought  never  to  raise  them,  but  in  proportion  to  those 
wants  ;  neither  should  he  employ  them,  but  with  that  view,  nor 
apply  them  to  his  own  private  uses. 

XXIII.  He  ought  also  to  attend  to  the  conduct  of  the  offi- 
cers, who  collect  them,  so  as  to  hinder  their  importunity  and 
oppression.  Thus  Tacitus  commends  a  very  wise  edict  of  the 
emperor  Nero,  "  who  ordered,  that  the  magistrates  of  Rome 
"  and  of  the  provinces  should  receive  complaints  against  the 
"  publicans  at  all  times,  and  regulate  them  on  the  spot." 

XXIV.  The  sovereign  or  transcendental  property,*  which,  as 
we  have  said,  constitutes  the  third  part  of  the  sovereign's  pow- 
er over  the  estates  of  his  subjects,  consists  in  the  right  of  mak- 
ing use  of  every  thing,  the  subject  possesses,  in  order  to  answer 
the  necessities  of  the  state. 

XXV.  Thus  for  example,  if  a  town  is  to  be  fortified,  he 
may  take  the  gardens,  lands,  or  houses  of  private  subjects,  sit- 
uated in  the  place,  where  the  ramparts  or  ditches  are  to  be  rais- 
ed. In  sieges  he  may  beat  down  houses  and  trees  belonging 
to  private  persons  to  the  end,  that  the  enemy  may  not  be  shel- 
tered by  them,,  or  the  garrison   incommoded. 

XXVI.  There  are  great  disputes  among  politicians,  concern- 
ing this  transcendental  property.      Some  absolutelv  will  not    ad^> 

*  Dominium  eminens. 


150  THE  PRINCIPLES  OF 

mit  of  it ;  but  the  dispute  turns  more  upon  the  word,  than  the 
thing.  It  is  certain,  that  the  very  nature  of  sovereignty  au- 
thorises a  prince,  in  case  of  necessity,  to  make  use  of  the  goods 
and  fortunes  of  his  subjects  ;  since  in  conferring  the  supreme 
authority  upon  him,  they  have  at  the  same  time  given  him  the 
power  of  doing  and  exacting  every  thing  necessary  for  the 
preservation  and  advantage  of  the  state.  Whether  this  be  cal- 
led transcendental  property,  or  by  some  other  name,  is  altogether 
indifferent,  provided  we  are  agreed  about  the  right  itself. 

XXVII.  To  say  something  more  particular  concerning  this 
transcendental  property,  we  must  observe  it  to  be  a  maxim  of 
natural  equity,  that,  when  contributions  are  to  be  raised  for  the 
exigencies  of  the  state,  and  for  the  preservation  of  some  partic- 
ular object  by  persons,  who  enjoy  it  in  common,  every  man 
ought  to  pay  his  quota,  and  should  not  be  forced  to  bear  more 
of  the  burden,  than  another. 

XXVIII.  But  since  it  may  happen,  that  the  pressing  wants 
of  the  state,  and  particular  circumstances,  will  not  permit  this 
rule  to  be  literally  followed,  there  is  a  necessity,  that  the  sover- 
eign should  have  a  right  to  deviate  from  it,  and  to  seize  on  the 
property  of  a  private  subject,  the  use  of  which,  in  the  present  cir- 
cumstances, is  become  necessary  to  the  public.  Hence  this 
right  takes  place  only  in  case  of  a  necessity  of  state,  which 
ought  not  to  have  too  great  an  extent,  but  should  be  tempered 
as  much  as  possible  with  the  rules  of  equity. 

XXIX.  It  is  therefore  just  in  that  case,  that  the  proprietors 
should  be  indemnified,  as  near  as  possible,  either  by  their  fellow 
subjects,  or  by  the  exchequer.  But  if  the  subjects  have  volun- 
tarily exposed  themselves,  by  building  houses  in  a  place,  where 
they  are  to  be  pulled  down  in  time  of  war,  then  the  state  is  not 
in  rigour  obliged  to  indemnify  them,  and  they  may  be  reasona- 
bly thought  to  have  consented  to  this  loss.  This  is  sufficient  for 
what  relates  to  the  right  of  the  sovereign  over  the  estates  of  the 
subject. 

XXX.  But,  besides  these  rights,  the  prince  has  also  origin- 
ally a  power  of  disposing  of  certain  places,  called  public  goods, 
because  they  belong  to  the  state  as  such.  But,  as  these  public 
goods  are  not  all  of  the  same  kind,  the  right  of  the  sovereign 
in  this  respect  also  varies, 


POLITIC  LAW.  151 

XXXI.  There  are  goods,  intended  for  the  support  of  the 
king  and  the  royal  family,  and  others  to  defray  the  expenses  of 
the  government.  The  former  are  called  the  crown  lands,  or 
the  patrimony  of  the  prince  •,  and  the  latter  the  public  treasure, 
or  the  revenue  of  the  state. 

XXXII.  With  regard  to  the  former,  the  sovereign  has  the 
full  and  entire  profits,  and  may  dispose  of  the  revenues,  arising 
from  them,  as  he  absolutely  pleases.  So  that  what  he  lays  up 
out  of  his  income  makes  an  accession  to  his  own  private  patri- 
mony, unless  the  laws  of  the  land  have  determined  otherwise. 
With  regard  to  other  public  goods,  he  has  only  the  simple  ad- 
ministration of  them,  in  which  he  ought  to  propose  only  the  ad- 
vantage of  the  state,  and  to  express  as  much  care  and  fidelity, 
as  a  guardian  with  respect  to  the  estate  of  his  pupil. 

XXXIII.  By  these  principles  we  may  judge  to  whom  the  ac- 
quisitions belong,  which  a  prince  has  made  during  his  reign ; 
for  if  these  acquisitions  arise  from  the  goods,  intended  to  defray 
the  public  expense,  they  ought  certainly  to  accrue  to  the  pub- 
lic, and  not  to  the  prince's  private  patrimony.  But  if  a  king  has 
undertaken  and  supported  a  war  at  his  own  expense,  and  with- 
out engaging  or  charging  the  state  in  the  least,  he  may  lawfully 
appropriate  the  acquisitions,  he  has  made  in  such  an  expidition. 

XXXIV.  From  the  principles  here  established  it  follows  al- 
so, that  the  sovereign  cannot,  without  the  consent  of  the  people 
or  their  representatives,  alienate  the  least  part  either  of  the  pub- 
lic patrimony,  or  of  the  crown  lands,  of  which  he  has  only  the 
use.  But  we  must  distinguish  between  the  goods  themselves 
and  the  profits  or  produce  of  them.  The  king  may  dispose  of 
the  revenues  or  profits,  as  he  thinks  proper,  though  he  cannot 
alienate  the  principle. 

XXXV.  A  prince  indeed,  who  has  a  right  of  laying  taxes  if 
he  thinks  meet  and  just,  may,  when  the  necessities  of  the  com- 
monwealth require  it,  mortgage  a  part  of  the  public  patrimony. 
For  it  is  the  same  thing  to  the  people,  whether  they  give  money 
to  prevent  the  mortgage,  or  it  be  levied  upon  them  afterwards 
in  order  to  redeem  it. 

XXXVI.  This  however  is  to  be  understood  upon  supposition, 
that  things  are  not  otherwise  regulated  by  the  fundamental  laws 
•f  the  state. 


i$2  THE  PRINCIPLES  OF 

XXXVII.  In  respect  to  the  alienation  of  the  kingdom,  or 
some  part  of  it,  from  the  principles  hitherto  established,  we  may 
easily  form  a  judgment  of  the  matter. 

And  i.  if  there  be  any  such  thing,  as  a  patrimonial  kingdom, 
it  is  evident  that  the  sovereign  may  alienate  the  whole,  and  still 
more  so,  that  he  may  transfer  a  part  of  it.* 

XXXVIII.  2.  But,  if  the  kingdom  be  not  possessed  as  a  pat- 
rimony, the  king  cannot  by  his  own  authority,  transfer  or  alien- 
ate any  part  of  it ;  for  then  the  consent  of  the  people  is  neces- 
sary. Sovereignty  of  itself  does  not  imply  the  right  of  aliena- 
tion, and  as  the  people  cannot  take  the  crown  from  the  prince 
against  his  will,  neither  has  the  king  a  power  of  substituting 
another  sovereign  in  his  place  without  their  consent. 

XXXIX.  3.  But  if  only  a  part  of  the  kingdom  is  to  be  al- 
ienated, besides  the  approbation  of  the  king  and  that  of  the  peo- 
ple, it  is  necessary,  that  the  inhabitants  of  the  part,  which  is  to 
be  alienated,  should  also  consent ;  and  the  latter  seems  to  be 
the  most  necessary.  It  is  to  no  purpose,  that  the  other  parts 
of  the  kingdom  agree  to  the  alienation  of  this  province,  if  the  in- 
habitants themselves  oppose  it.  The  right  of  the  plurality  of 
suffrages  does  not  extend  so  far,  as  to  cut  off  from  the  body  of 
the  state  those,  who  have  not  once  violated  their  engagements, 
nor  the  laws  of  society. 

XL.  And  indeed  it  is  evident,  that  the  persons,  who  first 
erected  the  commonwealth,  and  those,  who  voluntarily  came  into 
it  afterwards,  bound  themselves,  by  mutual  compact,  to  form  a 
permanent  body  or  society,  under  one  and  the  same  government, 
so  long  at  least,  as  they  inclined  to  remain  in  the  territories  of  the 
same  state  ;  and  it  is  with  a  view  to  the  advantages,  which  ac- 
crued to  them  in  common  from  this  reciprocal  union,  that  they 
first  erected  the  state.  This  is  the  foundation  of  their  compacts 
in  regard  to  government.  Therefore  they  cannot,  against  their 
will,  be  deprived  of  the  right,  they  have  acquired,  of  being  a 
part  of  a  certain  body  politic,  except  by  way  of  punishment. 
Besides,  in  this  case,  there  is  an  obligation,  corresponding  to  the 
above  right.  The  state,  by  virtue  of  the  same  compact,  has  ac- 
quired a  right  over  each  of  its  members,  so  that  no  subject  can 

*  See  Grotius,  lib.  ii.  cap.  6. 


POLITIC  LAW.  153 

put  himself  under  a  foreign  government,  nor  disclaim  the  au- 
thority of  his  natural  sovereign. 

XLI.  4.  It  is  however  to  be  observed,  that  there  are  two  gen- 
eral exceptions  to  the  principles  here  established,  both  of  them 
founded  on  the  right  and  privileges,  arising  from  necessity.  The 
first  is,  that,  though  the  body  of  the  state  has  not  the  right  of 
alienating  any  of  its  parts,  so  as  to  oblige  that  part,  against 
its  will,  to  submit  to  a  new  master,  the  state  however  may  be 
justified  in  abandoning  one  of  its  parts,  when  there  is  an  evident 
danger  of  perishing  if  they  continue  united. 

XLII.  It  is  true  that  even  under  those  circumstances,  the 
sovereign  cannot  directly  oblige  one  of  his  towns  or  provinces  to 
submit  to  another  government.  He  only  has  a  power  to  withdraw 
his  forces,  or  abandon  the  inhabitants  ;  but  they  retain  the  right 
of  defending  themselves  if  they  can  ;  so  that,  if  they  find  they 
have  strength  sufficient  to  resist  the  enemy,  there  is  no  reason, 
why  they  should  not ;  and,  if  they  succeed,  they  may  erect  them- 
selves into  a  distinct  commonwealth.  Hence  the  conqueror  be- 
comes the  lawful  sovereign  of  that  particular  country  only  by 
the  consent  of  the  inhabitants,  or  by  their  swearing  allegiance  to 
him. 

XLIII.  It  may  be  said,  that,  properly  speaking,  the  state  or 
the  sovereign  do  not  alienate,  in  this  case,  such  a  part,  but  only 
renounce  a  society,  whose  engagements  are  at  an  end  by  virtue 
of  a  tacit  exception,  arising  from  necessity.  After  all  it  would 
be  in  vain  for  the  body  to  persist  in  defending  such  a  part,  since 
we  suppose  it  unable  to  preserve  or  defend  itself.  It  is  there- 
fore a  mere  misfortune,  which  must  be  suffered  by  the  aban- 
doned part. 

XLIV  5.  But,  if  this  be  the  right  of  the  body  with  respect 
to  the  part,  the  part  has  also,  in  like  circumstances,  the  same 
right  with  regard  to  the  body.  Thus  we  cannot  condemn  a 
town,  which,  after  having  made  the  best  resistance  it  could,  choos- 
es rather  to  surrender  to  the  enemy,  than  be  pillaged  and  expos- 
ed to  fire  and  sword. 

XLV.  In  a  word,  every  one  has  a  natural  right  to  take  care  of 
his  own  preservation  by  all  possible  means  ;  and  it  is  principal- 
ly for  the  better  attainment  of  this  end,  that  men  have  entered 
IT 


j54  THE  PRINCIPLES  OF 

into  civil  societies.  If  therefore  the  state  can  no  longer  defend 
and  protect  the  subjects,  they  are  disengaged  from  the  ties  they 
were  under,  and  resume  their  original  right  of  taking  care  of 
themselves  independently  of  the  state,  in  the  manner  they  think 
most  proper.  Thus  things  are  equal  on  both  sides  ;  and  the 
sentiment  of  Grotius,  who  refuses  the  body  of  the  state,  with 
respect  to  the  part,  the  same  right,  which  he  grants  the  part, 
with  respect  to  the  body,  cannot  be  maintained. 

XLVI.  We  shall  conclude  this  chapter  with  two  remarks. 
The  first  is,  that  the  maxim,  which  some  politicians  inculcate  so 
strongly,  namely,  that  the  goods,  appropriated  to  the  crown,  are 
absolutely  unalienable,  is  not  true,  except  on  the  terms,  and  a- 
greebly  to  the  principles  here  established.  "What  the  same  pol- 
iticians add,  that  an  alienation,  succeeded  by  a  peaceable  posses- 
sion for  a  long  course  of  years,  does  not  hinder  a  future  right 
to  what  belonged  to  the  crown,  and  the  resumption  of  it  by 
main  force,  on  the  first  occasion,  is  altogether  unreasonable. 

The  second  observation  is,  that,  since  it  is  not  lawful  for  a 
king  independently  of  the  will  of  the  people  or  of  their  repre- 
sentatives, to  alienate  the  whole  or  any  part  of  his  kingdom,  it 
is  not  right  for  him  to  render  it  feudatory  to  another  prince  ; 
for  this  is  evidently  a  kind  of  alienation. 

END  OF  THE  THIRD  PART. 


THE 

PRINCIPLES 

OF 

POLITIC  LAW. 
PART  IV. 

In  which  are  considered  the  different  rights  of  sovereignty  with  res- 
pect to  foreign  states  ;  the  right  of  war  and  every  thing  relating 
to  it  ;  pulic  treaties,  and  the  right  of  ambassadors. 

CHAP.  I. 

Of  war  in  general ',  and  first  of  the  right  of  the  sovereign ,  in  this 
respect.,  over  his  subjects. 


,.w, 


HATEVER  has  been  hitherto  said  of  the  es- 
sential parts  of  sovereignty  properly  and  directly  regards 
the  internal  administration  of  the  state.  But,  as  the  happiness 
and  prosperty  of  a  nation  demand  not  only,  that  order  and 
peace  should  be  maintained  at  home,  but  also,  that  the  state 
should  be  protected  from  the  insults  of  enemies  abroad,  and  ob- 
tain all  the  advantages  it  can  from  other  nations  ;  we  shall  pro- 
ceed to  examine  those  parts  of  sovereignty,  which  directly  re- 
gard the  safety  and  external  advantages  of  the  state,  and  discuss 
the  most  essential  questions  relating  to  this  subject. 

II.  To  trace  things  from  their  original  we  must  first  observe, 
that  mankind  being  divided  into  several  societies,  called  states  or 
nations,  those  political  bodies,  forming  a  kind  of  society  among 
themselves,  are  also  subjected  to  those  primitive  and  general 
laws,  which  God  has  given  to  ail  mankind,  and  consequently 
they  are  obliged  to  practise  certain  duties  towards  each  other. 

III.  It  is  the  system  or  assemblage  of  those  laws,   that   is 


1 56  THE  PRINCIPLES  OF 

properly  called  the  lav/  of  nations  ;  and  these  are  no  more, 
than  the  laws  of  nature,  which  men,  considered  as  members  of 
society  in  general,  ought  to  practise  towards  each  other  ;  or,  in 
other  words,  the  law  of  nations  is  no  more,  than  the  general 
law  of  sociability,  applied  not  to  individuals,  composing  a  socie- 
ty, but  to  men,  as  forming  different  bodies,  called  states  or  na- 
tions. 

IV.  The  natural  state  of  nations,  with  respect  to  each  other, 
Is  certainly  that  of  society  and  peace.  Such  is  the  natural  and 
primitive  state  of  one  man  with  respect  to  another  ;  and  what- 
ever alteration  mankind  may  have  in  regard  to  their  original  state, 
they  cannot,  without  violating  their  duty,  break  in  upon  that 
state  of  peace  and  society,  in  which  nature  has  placed  them  ; 
and  which  bv  her  laws  she  has  so  strongly  recommended  to 
their  observance. 

V.  Hence  proceed  several  maxims  of  the  law  of  nations  ; 
for  example,  that  all  states  ought  to  look  upon  themselves  as 
naturally  equal  and  independent,  and  to  treat  each  other  as  such 
on  all  occasions.  Likewise  that  they  ought  to  do  no  injury  to 
any  other,  but,  on  the  contrary,  repair  that,  which  they  may 
have  committed.  Hence  also  arises  their  right  of  endeavouring 
to  provide  for  their  safety  and  happiness,  and  of  employing 
force  and  arms  against  those,  who  declare  themselves  their  enemies. 
Fidelity  in  treaties  and  alliances,  and  the  respect  due  to  ambas- 
sadors, are  derived  from  the  same  principle.  This  is  the  idea 
we  ought  to  form  of  the  law  of  nations  in  general. 

VI.  "We  do  not  here  propose  to  enter  into  all  the  political 
questions,  which  may  be  started  concerning  the  law  of  nations  ; 
we  shall  only  examine  the  following  articles,  which,  being  the 
most  considerable,  include  almost  all  the  rest,  I  mean  the  right 
of  nvar,  that  of  treaties  and  alliances,  and  that  of  ambassadors. 

VII.  The  subject  of  the  right  of  war,  being  equally  impor- 
tant and  extensive,  merits  to  be  treated  with  great  exactness. 
We  have  already  observed,  that  it  is  a  fundamental  maxim  of 
the  law  of  nature  and  nations,  that  individuals  and  states  ought 
to  live  in  a  state  of  union  and  society ;  that  they  should  not  in- 
jure each  other,  but  on  the  contrary  should  mutually  exercise  the 
duties  of  humanity. 


POLITIC  LAW.  157 

VIII.  Whenever  men  practise  these  duties,  they  are  said  to 
be  in  a  state  of  peace.  This  state  is  certainly  the  most  agreea- 
ble to  our  nature,  as  well  as  the  most  capable  of  promoting  hap- 
piness ;  and  indeed  the  law  of  nature  was  intended  chiefly  to 
establish  and  preserve  it. 

IX.  The  state  opposite  to  that  of  union  and  peace  is  what  we 
calf  war,  which,  in  the  most  general  sense,  is  no  more  than  the 
state  of  those,  who  try  to  determine  their  differences  by  the 
ways  of  force.  I  say  this  is  the  most  general  sense,  for,  in  a 
more  limited  signification,  common  use  has  restrained  the  word 
nvar  to  that,  carried  on  between  sovereign  powers.* 

X.  Though  a  state  of  peace  and  mutual  benevolence  is  cer- 
tainly most  natural  to  man,  and  most  agreeable  to  the  laws, 
which  ought  to  be  his  guide,  war  is  nevertheless  permitted  in 
certain  circumstances,  and  sometimes  necessary  both  for  individ- 
uals and  nations.  This  we  have  sufficiently  shown  in  the  sec- 
ond part  of  this  work,  by  establishing  the  rights,  with  which 
nature  has  invested  mankind  for  their  own  preservation,  and  the 
means  they  may  lawfully  employ  for  attaining  that  end.  The 
principles  of  this  kind,  which  we  have  established  with  respect 
to  particulars,  equally,  and  even  for  stronger  reasons,  are  appli- 
cable to  nations. 

XI.  The  law  of  God  no  less  enjoins  a  whole  nation  to  take 
care  of  their  preservation,  than  it  does  private  men.  It  is  there- 
fore just,  that  they  should  employ  force  against  those,  who,  de- 
claring themselves  their  enemies,  violate  the  lav/  of  sociability 
towards  them,  refuse  them  their  due,  seek  to  deprive  them  of 
their  advantages,  and  even  to  destroy  them.  It  is  therefore  for  the 
good  of  society,  that  people  should  be  able  to  repress  the  malice 
and  efforts  of  those,  who  subvert  the  foundations  of  it ;  other- 
wise the  human  species  would  become  the  victims  of  robbery 
and  licentiousness.  For  the  right  of  making  war  is,  properly 
speaking,  the  most  powerful  means  of  maintaining  peace. 

XII.  Hence  it  is  certain  that  the  sovereign,  in  whose  hands 
the  interest  of  the  whole  society  is  lodged,  has  a  right  to  make 
war.  But,  if  it  be  so,  we  must  of  course  allow  him  the  right 
of  employing  the  several  means  necessary  for  that  end.      In  a 

*  See  lower  down,  chap.  ill. 


158  THE  PRINCIPLES  OF 

word,  we  must  grant  him  the  power  of  levying  troops,  and 
obliging  them  to  perform  the  most  dangerous  duties  even  at  the 
peril  of  their  lives.  And  this  is  one  branch  of  the  right  of  life 
and  death,  which  manifestly  belongs  to  the  sovereign. 

XIII.  But  as  the  strength  and  valour  of  troops  depend,  in  a 
great  measure,  on  their  being  well  disciplined,  the  sovereign 
ought,  even  in  times  of  peace,  to  train  the  subjects  up  to  mfcr- 
tial  exercises,  to  the  end  that  they,  when  occasion  requires,  be 
more  able  to  sustain  the  fatigues,  and  perform  the  different  du- 
ties of  war. 

XIV.  The  obligation,  under  which  subjects  are  in  this  res- 
pect, is  so  rigorous  and  strong,  that,  strictly  speaking,  no  man 
can  be  exempted  from  taking  up  arms,  when  his  country  calls  on 
him  for  assistance ;  and  his  refusal  would  be  a  justreason  not  to  tol- 
erate such  a  person  any  longer  in  the  society.  If  in  most  gov- 
ernments there  are  some  subjects  exempted  from  military  exer- 
cises, this  impunity  is  not  a  privilege,  that  belongs  to  them  by 
right ;  it  is  only  a  toleration,  that  has  no  force,  but  when  there 
are  troops  sufficient  for  the  defence  of  the  commonwealth,  and 
the  persons,  to  whom  it  is  granted,  follow  some  other  useful  and 
necessary  employment.  Excepting  this  case,  in  time  of  need 
all  the  members  of  the  state  ought  to  take  the  field,  and  none 
can  be  lawfully  exempted. 

XV.  In  consequence  of  these  principles,  military  discipline 
should  be  very  rigorous  j  the  smallest  neglect,  or  the  least  fault, 
is  often  of  the  last  importance,  and  for  that  reason  may  be  se- 
verely punished.  Other  judges  make  some  allowance  for  the 
weakness  of  human  nature,  or  the  violence  of  passions  ;  but  in 
a  counsel  of  war,  there  is  not  so  much  indulgence  j  death  is 
often  inflicted  on  a  soldier,  whom  the  dread  of  that  very  evil  has 
induced  to  quit  his  post. 

XVI.  It  is  therefore  the  duty  of  those,  who  are  once  enlist- 
ed, to  maintain  the  post,  where  the  general  has  placed  them  ; 
and  to  fight  bravely,  even  though  they  run  a  risk  of  losing  their 
lives.  To  conquer  or  die  is  the  law  of  such  engagements ;  and 
it  is  certainly  much  better  to  lose  one's  life  gloriously,  by  en- 
deavouring lo  destroy  that  of  the  enemy,  than  to  die  in  a  cow- 
ardly manner.     Hence  some  judgment  may  be  formed  of  what 


POLITIC  LAW.  i5£ 

we  ought  to  think  of  those  captains  of  ships,  who,  by  orders  of 
their  superior,  blow  themselves  up  into  the  air,  rather  than  fall 
into  the  hands  of  the  enemy.  Suppose  the  number  of  ships 
equal  on  both  sides,  if  one  of  our  vessels  is  taken  the  enemy 
will  have  two  more  than  we ;  whereas  if  one  of  ours  is  sunk, 
they  will  have  but  one  more  •,  and  if  the  vessel,  which  wants 
to  take  ours,  sink  with  it,  which  often  happens,  the  forces  will 
remain  equal. 

XVII.  In  regard  to  the  question,  whether  subjects  are  oblig- 
ed to  take  up  arms,  and  serve  in  an  unjust  war,  we  must  judge 
of  it  by  the  principles  already  established  at  the  end  of  the  first 
chapter  of  the  third  part,  which  treats  of  the  legislative  power. 

XVIII.  These  are  the  obligations  of  subjects  with  respect 
to  war  and  to  the  defence  of  government  ;  but  this  part  of  the 
supreme  power  being  of  great  importance,  the  utmost  precau- 
tion is  required  in  the  sovereign  to  exercise  it  in  such  a  manner, 
as  may  prove  advantageous  to  the  state.  We  shall  here  point  out 
the  principal  maxims  on  this  article  of  politics. 

XIX.  First  then  it  is  evident,  that  the  force  of  a  state,  with 
respect  to  war,  consists  chiefly  in  the  number  of  its  inhabitants ; 
sovereigns  therefore  ought  to  neglect  nothing,  that  can  either 
support  or  augment  the  number  of  them. 

XX.  Among  the  other  means,  which  may  be  used  for  this 
purpose,  there  are  three  of  great  efficacy.  The  first  is  easily 
to  receive  all  strangers  of  good  character,  who  want  to  settle 
among  us  ;  to  let  them  taste  the  sweets  of  government ;  and 
to  make  them  share  the  advantages  of  civil  liberty.  Thus  the 
state  is  filled  with  the  subjects,  who  bring  with  thern  the  arts, 
commerce,  and  riches ;  and  among  whom  we  may,  in  time  of 
need,  find  a  considerable  number  of  good  soldiers. 

XXI.  Another  thing,  conducive  to  the  same  end,  is  to  favor 
and  encourage  marriages,  which  are  the  pledges  of  the  state  ; 
and  to  make  good  laws  for  this  purpose.  The  mildness  of  the 
government  may,  among  other  things,  greatly  contribute  to  in- 
cline the  subjects  to  join  together  in  wedlock.  People,  loaded 
with  taxes,  who  can  hardly,  bv  their  labour,  find  wherewithal 
to  supply  the  wants  of  life  and  the  public  charges,  are  not  in- 
clined to  marry,  lest  their  children  should  starve  for  hunger. 


160  THE  PRINCIPLES  OF 

XXII.  Lastly  another  mean,  very  proper  for  maintaining  and 
augmenting  the  number  of  inhabitants,  is  liberty  of  conscience. 
Religion  is  one  of  the  greatest  advantages  of  mankind,  and  all 
men  view  it  in  that  light.  Every  thing,  tending  to  deprive  them 
of  this  liberty,  appears  insupportable.  They  cannot  easily  ac- 
custom themselves  to  a  government,  which  tyrannizes  over  them 
in  this  article.  France,  Spain,  and  Holland  present  us  with 
sensible  proofs  of  the  truth  of  these  observations.  Persecutions 
have  deprived  the  first  of  a  great  part  of  her  inhabitants  ;  by 
which  means  she  has  been  considerably  weakened.  The  second 
is  almost  unpeopled  j  and  this  depopulation  is  occasioned  by  the 
barbarous  and  tyrannical  establishment,  called  the  Inquisition ; 
an  establishment  equally  affronting  to  God  and  pernicious  to  hu- 
man society,  and  which  has  made  a  kind  of  desert  of  one  of  the 
finest  countries  in  Europe.  The  third,  in  consequence  of  an 
entire  liberty  of  conscience,  which  she  offers  to  all  the  world,  is 
considerably  improved  even  amidst  wars  and  disasters.  She  has 
raised  herself,  as  it  were,  on  the  ruin  of  other  nations,  and  by 
the  number  of  her  inhabitants,  who  have  brought  power,  com- 
merce, and  riches  into  her  bosom,  she  enjoys  a  high  degree  of 
credit  and  prosperity. 

XXIII.  The  great  number  of  inhabitants  is  therefore  the  prin- 
cipal strength  of  a  country.  But  for  this  end,  the  subjects  must 
also  be  inured  betimes  to  labor,  and  trained  to  virtue.  Luxury, 
effeminacy,  and  pleasure,  impair  the  body,  and  enervate  the  mind. 
A  prince  therefore,  who  desires  to  put  the  military  establishment 
on  a  proper  footing,  ought  to  take  particular  care  of  the  educa- 
tion of  youth,  so  as  to  procure  his  subjects  the  means  of  form- 
ing themselves,  by  a  strict  discipline,  to  bodily  exercises,  and  to 
prevent  luxury  and  pleasure  from  debauching  their  manners,  or 
weakening  their  courage. 

XXIV.  Lastly  one  of  the  most  effectual  means  of  having  good 
troops  is  to  make  them  observe  the  military  order  and  discipline 
with  all  possible  care  and  exactness ;  to  take  particular  care, 
that  the  soldiers  be  punctually  paid  •,  to  see  that  the  sick  be  prop- 
erly looked  after,  and  to  furnish  them  with  the  assistance,  they 
stand  in  need  of;  lastly,  to  preserve  among  them  a  knowledge 
of  religion  and  of  the  duties  it  prescribes,  by  procuring  them 


POLITIC  LAW.  161 

the  means  of  instruction.  These  are  the  principal  maxims, 
which  good  policy  suggests  to  sovereigns,  by  means  of  which 
they  may  reasonably  hope  always  to  find  good  troops  among 
their  subjects,  such  as  shall  be  disposed  to  spill  the  last  drop  of 
their  blood  in  defence  of  their  country. 


CHAP.  II. 

Of  the  causes  of  war. 

I.  .IF  war  be  sometimes  lawful,  and  even  necessary,  as  we 
have  already  demonstrated,  this  is  to  be  understood  when  it  is 
undertaken  only  for  just  reasons,  and  on  condition,  that  the 
prince,  who  undertakes  it,  proposes,  by  that  method,  to  obtain 
a  solid  and  lasting  peace.  A  war  may  therefore  be  either  just 
or  uajust,  according  to  the  cause,  which  has  produced  it. 

II.  A  war  is  just  if  undertaken  for  just  reasons ;  and  unjust 
if  it  be  entered  into  without  a  cause,  or  at  least  without  a  just 
and  sufficient  motive. 

III.  To  illustrate  the  matter,  we  may,  with  Grotius,  distin- 
guish between  the  justifying  reasons,  and  the  motives  of  the  war. 
The  former  are  those,  which  render,  or  seem  to  render,  the  war 
just  with  respect  to  the  enemy,  so  that,  in  taking  up  arms  against 
him,  we  do  not  think  we  do  him  injustice.  The  latter  are  the 
views  of  interest,  which  determine  a  prince  to  come  to  an  open 
rupture.  Thus,  in  the  war  of  Alexander  against  Darius,  the 
justifying  reason  of  the  former  was  to  revenge  the  injuries,  which 
the  Greeks  had  received  from  the  Persians.  The  motives  were, 
the  ambition,  vanity,  and  avarice  of  that  conqueror,  who  took  up 
arms  the  more  cheerfully,  as  the  expeditions  of  Xenophon  and 
Agesilaus  made  him  conceive  great  hopes  of  success.  The  jus- 
tifying reason  of  the  second  Punic  war  was  a  dispute  about  the 
city  of  Saguntum.  The  motive  was  an  old  grudge,  entertained 
by  the  Carthaginians  against  the  Romans  for  the  hard  terms, 
they  were  obliged  to  submit  to,  when  reduced  to  a  low  condition 
and  the  encouragement  given  them  by  the  success  of  their  arms 
in  Spain. 

W 


1 62  THE  PRINCIPLES  OF 

IV.  In  a  war  perfectly  just,  the  justifying  reasons  must  not 
only  be  lawful,  but  also  must  be  blended  with  the  motive  ;  that 
is,  we  must  never  undertake  a  war  but  from  the  necessity  of  de- 
fending ourselves  against  an  insult,  of  recovering  our  undoubted 
right,  or  of  obtaining  satisfaction  for  a  manifest  injury. 

V.  Thus  a  war  maybe  vicious  or  unjust,  with  respect  to  the 
causes,  four  different  ways. 

i .  When  we  undertake  it  without  any  just  reason,  or  so  much 
as  an  apparent  motive  of  advantage,  but  only  from  a  fierce  and 
brutal  fury,  which  delights  in  blood  and  slaughter.  But  it  may 
be  doubted  whether  we  can  find  an  example  of  so  barbarous  a 
war. 

VI.  2.  When  we  attack  others  only  for  our  own  interest, 
without  their  having  done  us  any  injury  ;  that  is,  when  we  have 
no  justifying  causes  ;  and  these  wars  are,  with  respect  to  the 
aggressor,  downright  robberies. 

VII.  3.  When  we  have  some  motives,  founded  on  justifying 
causes,  but  which  have  still  only  an  apparent  equity,  and  when 
well  examined,  are  found  at  the  bottom  to  be  unlawful.  - 

VIII.  4.  Lastly,  we  may  say  that  a  war  is  also  unjust,  when, 
though  we  have  good  justifying  reasons,  yet  we  undertake  it 
from  other  motives,  which  have  no  relation  to  the  injury  receiv- 
ed ;  as  for  instance,  through  vain  glory,  or  the  desire  of  extend- 
ing our  dominions,  &c. 

IX.  Of  these  four  sorts  of  war,  the  undertaking  of  which 
includes  injustice,  the  third  and  last  are  very  common  ;  for  there 
are  few  nations  so  barbarous  as  to  take  up  arms  without  alledg- 
ing  some  sort  of  justifying  reasons.  It  is  not  difficult  to  discover 
the  injustice  of  the  third ;  as  to  the  fourth,  though  perhaps  ve- 
ry common,  it  is  not  so  much  unjust  in  itself,  as  with  respect 
to  the  view  and  design  of  the  person,  who  undertakes  it.  But 
it  is  very  difficult  to  convince  him  of .  it,  the  motives  being  gen- 
erally impenetrable,  or  at  least  most  princes  taking  great  care  to 
conceal  them.* 

X.  From  the  principles   here  established  we  may  conclude, 

*  See  the  explication  of  these  principles  in  Budeus's  Jurisprud.  hist,  specim. 
sect,  %%,  &c. 


POLITIC  LAW.  163 

that  every  just  war  must  be  made,  either  to  defend  ourselves 
and  our  property  against  those,  who  endeavour  to  injure  us  by 
assaulting  our  persons,  and  by  taking  away  or  ruining  our  es- 
tates ;  or  to  constrain  others  to  yield  up  to  us  what  they  ought 
to  do,  when  we  have  a  perfect  right  to  require  it  of  them ;  or 
lastly  to  obtain  satisfaction  for  the  damages,  we  have  injurious- 
ly sustained,  and  to  force  those,  who  did  the  injury,  to  give  se- 
curity for  their  good  behaviour. 

XI.  From  this  we  easily  conceive  what  the  causes  of  war 
may  be.  But  to  illustrate  the  subject  still  further,  we  shall 
give  some  examples  of  the  principal  unjust  causes  of  war. 

1.  Thus,  for  example,  to  have  a  just  reason  for  war,  it  is  not 
sufficient,  that  we  are  afraid  of  the  growing  power  of  a  neigh- 
bour. All  we  can  do,  in  those  circumstances,  is  innocently  to 
try  to  obtain  real  caution>  that  he  will  attempt  nothing  against  us  ; 
and  to  put  ourselves  in  a  posture  of  defence.  But  acts  of  hos- 
tility are  not  permitted,  except  when  necessary  ;  and  they  are 
never  necessary  so  long,  as  we  are  not  morally  certain,  that  the 
neighbour  we  dread  has  not  only  the  power,  but  also  the  incli- 
nation to  attack  us.  "We  cannot  for  instance  justly  declare  war 
against  a  neighbour,  purely  because  he  orders  citadels  or  fortifi- 
cations to  be  erected,  which  he  may  sometime  or  other  employ 
to  our  prejudice. 

XII.  2.  Neither  does  utility  alone  give  the  same  right  as  ne- 
cessity, nor  is  it  sufficient  to  render  a  war  lawful.  Thus,  for 
example,  we  are  not  allowed  to  take  up  arms  with  a  view  to 
make  ourselves  masters  of  a  place,  which  lies  conveniently  for 
us,  and  is  proper  to  cover  our  frontiers. 

XIII.  3.  We  must  say  the  same  of  the  desire  of  changing 
our  former  settlements,  and  of  removing  from  marshes  and  des- 
erts to  a  more  fertile  soil. 

4.  Nor  is  it  less  unjust  to  invade  the  rights  and  liberty  of  a 
people,  under  a  pretext  of  their  not  being  so  polished  in  their 
manners,  or  of  such  quick  understanding  as  ourselves.  It  was 
therefore  unjust  in  the  Greeks  to  treat  those,  whom  they  called 
Barbarians,  as  their  natural  enemies,  on  account  of  the  di- 
versity of  their  manners,  and  perhaps  because  they  did  not  ap- 
pear to  be  so  ingenious  as  themselves. 


l6'4  THE  PRINCIPLES  OF 

XIV.  5.  It  would  also  be  an  unjust  war  to  take  up  arms 
against  a  nation,  in  order  to  bring  them  under  subjection,  under 
pretence  of  its  being  their  interest  to  be  governed  by  us.  Though 
a  thing  be  advantageous  to  a  person,  yet  this  does  not  give  us  a 
right  to  compel  him  to  it.  Whoever  has  the  use  of  reason 
ought  to  have  the  liberty  of  choosing  what  he  thinks  advanta- 
geous to  himself 

XV.  We  must  also  observe,  that  the  duties,  which  nations 
ought  to  practise  towards  each  other,  are  not  all  equally  obliga- 
tory, and  that  their  deficiency  in  this  respect  does  not  always  iay 
a  foundation  for  a  just  war.  Among  nations,  as  well  as  individ- 
uals, there  are  duties  attended  with  a  rigorous  and  perfect  obliga- 
tion, the  violation  of  which  implies  an  injury  properly  so  called  ; 
and  duties  of  an  imperfect  obligation,  which  give  to  another  on- 
ly an  imperfect  right.  And  as  we  cannot,  in  a  dispute  be- 
tween individuals,  have  recourse  to  courts  of  law  to  recover 
what  in  this  second  manner  is  our  due  •,  so  neither  can  we,  in 
contests  between  different  powers,  constrain  them  by  force  of 
arms. 

XVI.  We  must  however  except  from  this  rule  the  cases  of 
necessity,  in  which  the  imperfect  is  changed  into  the  perfect  right ; 
so  that,  in  those  cases  the  refusal  of  him,  who  will  not  give  us 
our  due,  furnishes  us  with  a  just  reason  for  war.  But  every 
war,  undertaken  on  account  of  the  refusal  of  what  a  man  is  not 
obliged  by  the  laws  of  humanity  to  grant,  is  unjust. 

XVII.  To  apply  these  principles  we  shall  give  some  exam- 
ples. The  right  of  passing  over  the  lands  of  another  is  really 
founded  on  humanity,  when  we  design  to  use  that  permission 
only  on  a  lawful  account  j  as  when  people,  expelled  their  own 
country,  want  to  settle  elsewhere  •■,  or  when,  in  the  prosecution 
of  a  just  war,  it  is  necessary  to  pass  through  the  territories  of  a 
neutral  nation,  &c.  But  this  is  only  an  office  of  humanity, 
which  is  not  due  to  another  in  virtue  of  a  perfect  and  rigorous 
right,  and  the  refusal  of  it  does  not  authorise  a  nation  to  challenge 
it  i)i  a  forcible  manner. 

XVIII.  Grotius  however,  examining  this  question,  pretends, 
cf  that  we  are  not  only  obliged  to  grant  a  passage  over  our  lands 
<{  to  a  small  number  of  men  unarmed,  and  from  whom  we  have 


POLITIC  LAW.  165 

"  consequently  nothing  to  fear  ;  but  moreover  that  we  cannot 
"  refuse  it  to  a  large  army,  notwithstanding  the  just  apprehension 
'*  we  may  have,  that  this  passage  will  do  us  a  considerable  inju- 
"  rv,  which  is  likely  to  arise  either  from  that  army  itself,  or 
"  from  those,  against  whom  it  marches  ;  provided,  continues 
"  he,  I.  that  this  passage  is  asked  on  a  just  account.  2.  That 
u  it  is  asked  before  an  attempt  is  made  to  pass  by  force." 

XIX.  This  author  then  pretends,  that  under  those  circum- 
stances, the  refusal  authorises  us  to  have  recourse  to  arms,  and 
that  we  may  lawfully  procure  by  force,  what  we  could  not  ob- 
tain by  favor,  even  though  the  passage  may  be  had  elsewhere  by 
taking  a  larger  circuit.  He  adds,  "  That  the  suspicion  of  dan- 
"  ger  from  the  passing  of  a  great  number  of  armed  men  is  not 
u  a  sufficient  reason  to  refuse  it,  because  good  precautions  may 
"  be  taken  against  it.  Neither  is  the  fear  of  provoking  that 
"  prince,  against  whom  the  other  marches  his  army,  a  sufficient 
"  reason  for  refusing  him  passage,  if  the  latter  has  a  just  reason 
M  io:  undertaking  the  war." 

XX.  Grotius  founds  his  opinion  on  this  reason,  that  the  es- 
tablishment of  property  was  originally  made  with  the  tacit 
reservation  of  the  right  of  using  the  property  of  another  in 
time  of  need,  so  far  as  it  can  be  done  without  injuring  the 
owner. 

XXI.  But  I  cannot  embrace  the  opinion  of  this  celebrated 
writer  ;  for,  1.  whatever  may  be  said,  it  is  certain,  that  the  right 
of  passing  through  the  territories  of  another  is  not  a  perfect 
right,  the  execution  of  which  can  be  rigorously  demanded.  If 
a  private  person  is  not  obliged  to  suffer  another  to  pass  through 
his  ground,  much  less  is  a  nation  obliged  to  grant  a  passage  to 
a  foreign  army,  without  any  compact  or  concession  intervening. 

XXII.  2.  The  great  inconveniences,  which  may  follow  such 
a  permission,  authorizes  this  refusal.  By  granting  such  a  pas- 
sage, we  run  a  risk  of  making  our  own  country  the  seat  of  war. 
Besides,  if  they,  to  whom  we  grant  this  passage,  are  repulsed 
and  vanquished,  let  the  reasons  they  had  for  making  war  be  ev- 
er so  just,  yet  will  not  the  enemy  revenge  himself  upon  us,  who 
did  not  hinder  those  troops  from  invading  him  ?  But  farther,  sup- 
pose that  we  live  in  friendship  with  both  the  princes,  who  are  at 


1 66  THE  PRINCIPLES  OF 

war,  we  cannot  favor  one  to  the  prejudice  of  the  other,  without 
giving  this  other  a  sufficient  reason  to  look  upon  us  as  enemies, 
and  as  defective  in  that  part  of  our  duty,  which  we  owe  to  our 
neighbours.  It  would  be  in.  vain,  on  this  occasion,  to  distin- 
guish between  a  just  and  an  unjust  war,  pretending  that  the  lat- 
ter gives  a  right  of  refusing  the  passage,  but  the  former  obliges 
us  to  grant  it.  This  distinction  does  not  remove  the  difficulty  ; 
for,  besides  that  it  is  not  always  easy  to  decide  whether  a  war 
be  just  or  unjust,  it  is  a  pieces  of  rashness  to  thrust  in  our  arbi- 
tration between  two  armed  parties,  and  to  intermeddle  with  their 
differences. 

XXIII.  3.  But  is  there  nothing  to  fear  from  the  troops,  to 
whom  the  passage  is  granted  ?  The  abettors  of  the  contrary 
opinion  agree  there  is,  for  which  reason  they  allow,  that  many 
precautions  ought  to  be  observed.  But  whatever  precautions 
we  may  take,  none  of  them  can  secure  us  against  all  events  ; 
and,  some  evils  and  losses  are  irreparable-  Men,  who  are  always 
in  arms,  are  easily  tempted  to  abuse  them,  and  to  commit  out- 
rages, especially  if  they  be  numerous,  and  find  an  opportunity  of 
making  a  considerable  booty.  How  often  have  we  seen  foreign 
armies  ravage  and  appropriate  to  themselves  the  estates  of  a  peo- 
ple, who  have  called  them  to  their  assistance  ?  Nor  have  the 
most  solemn  treaties  and  oaths  been  able  to  deter  them  from 
this  black  perfidiousness.*  What  then  may  we  expect  from 
those,  who  are  under  no  such  strict  engagement  ? 

XXIV.  4.  Another  observation  we  may  make,  which  is  of 
great  use  in  politics,  that  almost  all  states  have  this  in  common, 
that  the  further  we  advance  into  the  heart  of  a  country,  the 
weaker  we  find  it.  The  Carthaginians,  otherwise  invincible, 
were  vanquished  near  Carthage  by  Agathocles  and  Scipio. 
Hannibal  affirmed,  that  the  Romans  could  not  be  conquered  ex- 
cept in  Italy.  It  is  therefore  dangerous  to  lay  open  this  secret  to 
a  multitude  of  foreigners,  who,  having  arms  at  hand,  may  take 
advantage  of  our  weakness,  and  make  us  repent  our  imprudence. 

XXV.  5.  To  this  we  must  add,  that  in  every  state  there  are 
almost  always  mutinous  and  turbulent  spirits,  who  are  ready  to 
Stir  up  strangers  either  against  their  fellow  citizens,  their  sove- 

*  See  Just.  lib.  iv.  cap.  4  &  8  and  Liv.  lib.  vii.  cap.  38. 


POLITIC  LAW.  167 

reign,  or  their  neighbours.  These  reasons  sufficiently  prove,  that 
all  the  precautions,  which  can  be  taken,  cannot  secure  us  from 
danger. 

6.  Lastly  we  may  add  the  example  of  a  great  many  nations, 
who  have  been  very  ill  requited  for  letting  foreign  troops  pass 
through  their  country. 

XXVI.  We  shall  finish  the  examination  of  this  question  by 
making  two  remarks.  The  first  is,  that  it  is  evident  from  the 
whole  of  what  has  been  said,  that  this  is  a  matter  of  prudence  ; 
and  that,  though  we  are  not  obliged  to  grant  a  passage  to  foreign 
troops,  and  the  safest  way  is  to  refuse  it,  yet  when  we  are  not 
strong  enough  to  resist  those,  who  want  the-  pass  at  any  rate, 
and  by  resisting  we  must  involve  ourselves  in  a  troublesome  war, 
we  ought  certainly  to  grant  a  passage ;  and  the  necessity,  to 
which  we  are  reduced,  is  sufficient  justification  to  the  prince, 
whose  territories  those  troops  are  going  to  invade. 

XXVII.  My  second  remark  is,  that, if  we  suppose  on  one  hand, 
that  the  war,  which  the  prince,  who  demands  a  passage  through 
our  country,  makes,  is  just  and  necessary,  and,  on  the  other, 
that  we  have  nothing  to  fear  either  from  him,  who  is  to  pass,  or 
him,  against  whom  he  marches  ;  we  are  then  indispensably  oblig- 
ed to  grant  a  passage.  For  if  the  law  of  nature  obliges  every 
man  to  assist  those,  whom  he  sees  manifestly  oppressed,  when 
he  can  do  it  without  danger  and  with  hopes  of  success,  much 
less  ought  he  to  be  a  hinderance  to  such,  as  undertake  their  own 
defence. 

XXVIII.  By  following  the  principles  here  established,  we 
may  judge  of  the  right  of  transporting  merchandizes  through  the 
territories  of  another.  This  is  also  an  imperfect  right,  and  a 
duty  of  humanity,  which  obliges  us  to  grant  it  to  others ;  but 
the  obligation  is  not  rigorous,  and  the  refusal  cannot  be  a  just 
reason  for  war. 

XXIX.  Truly  speaking  the  laws  of  humanity  indispensably 
oblige  us  to  grant  a  passage  to  such  foreign  commodities,  as  are 
absolutely  necessary  for  life,  which  our  neighbours  cannot  pro- 
cure by  themselves,  and  with  which  we  are  not  able  to  furnish 
them.  But,  except  in  this  case,  we  may  have  good  reasons  for 
hindering  foreign  commodities  from  passing  through  our  coun- 


1 68  THE  PRINCIPLES  OF 

try.  Too  great  a  resort  for  strangers  is  sometimes  dangerous 
to  a  state  ;  and  besides,  why  should  not  a  sovereign  procure  to 
his  own  subjects  that  profit,  which  would  otherwise  be  made  by 
foreigners,  by  means  of  the  passage  granted  them  ? 

XXX.  It  is  not  however  contrary  to  humanity  to  require  toll 
or  custom  for  foreign  commodities,  to  which  a  passage  is  grant- 
ed. This  is  a  just  reimbursement  for  the  expenses,  the  sove- 
reign is  obliged  to  be  at  in  repairing  the  high  roads,  bridges,  har- 
bors, &c. 

XXXI.  We  must  reason  in  the  same  manner  in  regard  to 
commerce  in  general  between  different  states.  The  same  may 
be  said  of  the  right  of  being  supplied  with  wives  by  our  neigh- 
bours ;  a  refusal  on  their  side,  though  there  be  great  plenty  of 
women  among  them  does  not  authorise  us  to  declare  war. 

XXXII.  We  shall  here  subjoin  something  concerning  wars, 
undertaken  on  account  of  religion.  The  law  of  nature,  which 
permits  a  man  to  defend  his  life,  his  substance,  and  all  the  oth- 
er advantages,  which  he  enjoys,  against  the  attacks  of  an  un- 
just aggressor,  certainly  grants  him  the  liberty  also  of  defending 
himself  against  those,  who  would,  as  it  were  by  force,  deprive 
him  of  his  religion,  by  hindering  him  from  professing  that, 
which  he  thinks  the  best,  or  by  constraining  him  to  embrace 
that,  which  he  thinks  to  be  false. 

XXXIII.  In  a  word,  religion  is  one  of  the  greatest  blessings 
man  can  enjoy,  and  includes  his  most  essential  interests.  Who- 
ever opposes  him  in  this  respect  declares  himself  his  enemy  ; 
and  consequently  he  may  justly  use  forcible  methods  to  repel  the 
injury,  and  to  secure  himself  against  the  evil  intended  him. 
It  is  therefore  lawful,  and  even  just,  to  take  up  arms,  when 
we  are  attacked  for  the  cause  of  religion. 

XXXIV.  But,  though  we  are  allowed  to  defend  ourselves  in 
the  cause  of  religion,  we  are  not  permitted  to  make  war  in  or- 
der to  propagate  that,  which  we  profess,  and  to  constrain  those, 
who  have  some  principle  or  practice  different  from  ours.  The 
one  is  a  necessary  consequence  of  the  other.  It  is  not  lawful 
to  attack  him,  who  has  a  right  to  defend  himself.  If  the  de- 
fensive war  is  just,  the  offensive  must  be  criminal.  The  very 
nature  of  religion  does   not  permit,  that  violent  means  should 


POLITIC  LAW.  i6g 

be  used  for  its  propagation  j  it  consists  in  internal  persuasion. 
The  right  of  mankind,  in  regard  to  the  propagation  of  religion, 
is  to  inform  and  instruct  those,  who  are  in  error,  and  to  use  the 
soft  and  gentle  methods  of  conviction.  Men  must  be  persuaded, 
and  not  compelled.  To  act  otherwise  is  to  commit  a  robbery 
on  them  ;  a  robbery  so  much  the  more  criminal,  as  those,  who 
commit  it,  endeavour  to  justify  themselves  by  sacred  authority. 
There  is  therefore  no  less  folly,  than  impiety,  in  such  a  con- 
duct. 

XXXV.  In  particular  nothing  is  more  contrary  to  the  spirit 
of  Christianity,  than  to  employ  the  force  of  arms  for  the  propa- 
gation of  our  holy  religion.  Christ,  our  divine  master,  instructed 
mankind,  but  never  treated  them  with  violence.  The  Apostles 
followed  his  example  ;  and  the  enumeration,  which  St.  Paul 
makes  of  the  arms  he  employed  for  the  conversion  of  mankind, 
is  an  excellent  lesson  to  Christians. 

XXXVI.  So  far  is  a  simple  difference  of  opinion,  in  matters 
of  religion  from  being  a  just  reason  for  pursuing,  by  force  of 
arms,  or  disturbing  in  the  least  those,  whom  we  think  in  an  er- 
ror •,  that,  on  the  contrary,  such  as  act  in  this  manner,  furnish 
others  with  a  just  reason  for  making  war  against  them,  and  of 
defending  those,  whom  they  unjustly  oppress.  Upon  which  occa- 
sion the  following  question  occurs,  Whether  protestant  princes  may 
not,  with  a  good  censcience,  enter  into  a  confederacy  to  destroy  the  Inqui~ 
sition,  and  oblige  the  powers,  who  suffer  it  in  their  dominions,  to  disarm 
that  cabal,  under  which  Christianity  has  so  long-  groaned,  and  which% 
tinder  a  false  pretence  to  zeal  and  piety,  exercises  a  tyranny  most  horri- 
ble in  itself,  and  most  contrary  to  human  nature  ?  Be  that  as  it  mays 
it  is  at  least  certain,  that  never  would  any  hero  have  subdued 
monsters  more  furious  and  destructive  to  mankind,  than  he  who 
could  accomplish  the  design  of  purging  the  earth  of  these  wick- 
ed men,  who  so  impudently  and  cruelly  abuse  the  specious  show 
of  religion,  only  to  procure  wherewith  to  live  in  luxury  and  idle- 
ness, and  to  make  both  princes  and  subjects  dependant  on 
them. 

XXXVII.  These  are  the  principal  remarks,  which  occur  on 
the  causes  of  war.     To  which  let  us  add,  that  as  we  ought  not 

*  %  Cor.  shap.  vi,  ver.  4,  &c.  and  chap.  x.  ver.  4. 

X 


17©  THE  PRINCIPLES  OF 

to  make  war,  which  of  itself  is  a  very  great  evil,  but  to  obtain 
a  solid  peace,  it  is  absolutely  necessary  to  consult  the  rules  of 
prudence  before  we  undertake  it,  however  just  it  may  other- 
wise appear.  We  must,  above  all  things,  exactly  weigh  the 
good  or  evil,  which  we  may  bring  upon  ourselves  by  it.  For,  if  in 
making  war  there  is  reason  to  fear,  that  we  shall  draw  greater 
evils  on  ourselves,  or  those,  who  belong  to  us,  than  the  good  we 
can  propose  from  it ;  it  is  better  to  put  up  with  the  injury,  than 
to  expose  ourselves  to  more  considerable  evils,  than  that,  for 
which  we  seek  redress  by  arms. 

XXXVIII.  In  the  circumstances  here  mentioned  we  may 
lawfully  make  war,  not  only  for  ourselves,  but  also  for  others ; 
provided  that  he,  in  whose  favour  we  engage,  has  just  reason  to 
take  up  arms,  and  that  we  are  likewise  under  some  particular 
tie  or  obligation  to  him,  which  authorises  us  to  treat  as  ene- 
mies those,  who  have  done  us  no  injury. 

XXXIX.  Now  among  those,  whom  we  may  and  ought  to 
defend,  we  must  give  the  first  place  to  such,  as  depend  on  the 
defender  •,  that  is,  to  the  subjects  of  the  state  ;  for  it  is  princi- 
pally with  this  view  of  protection,  that  men,  before  independ- 
ent, incorporated  themselves  into  a  civil  society.  Thus  the 
Gibeonites  having  submitted  themselves  to  the  government  of  the 
Israelites,  the  lattsr  took  up  arms  on  their  account,  under  the 
command  of  Joshua.  The  Romans  also  proceeded  in  the  same 
manner.  But  sovereigns  in  these  cases  ought  to  observe  the 
maxim  we  have  established  in  sect.  37.  They  ought  to  beware, 
in  taking  up  arms  for  some  of  their  subjects,  not  to  bring  a 
greater  inconveniency  on  the  body  of  the  state.  The  duty  of 
the  sovereign  regards  first  and  principally  the  interest  of  the 
whole,  rather  than  that  of  a  part  ;  and  the  greater  the  part  is, 
the  nearer  it  approaches  to  the  whole. 

XL.  1.  Next  to  subjects  come  our  allies,  whom  we  are  ex- 
pressly engaged  by  treaty  to  assist  in  time  of  need  ;  and  this, 
whether  they  have  put  themselves  intirely  under  our  protection, 
and  so  depend  upon  it  ;  or  whether  assistance  be  agreed  upon 
for  mutual  security. 

XLI.  But  the  war  must  be  justly  undertaken  by  our  ally  •, 
for  we  cannot  innocently  engage  to  help  any  one  in  a  war, 
which  is   manifestly  unjust.      Let  us   add  here,  that  we  may, 


POLITIC  LAW.  171 

even  without  prejudice  to  the  treaty,  defend  our  own  subjects 
preferably  to  our  allies,  when  there  is  no  possibility  of  assisting 
them  both  at  the  same  time  ;  for  the  engagements  of  a  govern- 
ment to  its  subjects  always  supersede  those,  into  which  it  en- 
ters with  strangers. 

XLII.  As  to  what  Grotius  says,  that  we  are  not  obliged  to 
assist  an  ally,  when  there  is  no  hope  of  success ;  it  is  to  be  un- 
derstood in  this  manner.  If  we  see  that  our  united  forces  are 
not  sufficient  to  oppose  the  enemy,  and  that  our  ally,  though 
able  to  treat  with  him  on  tolerable  terms  is  yet  obstinately  bent 
to  expose  himself  to  certain  ruin ;  we  are  not  obliged,  by  the 
treaty  of  alliances,  to  join  with  him  in  so  extravagant  and  des- 
perate an  attempt.  But  then  it  is  also  to  be  considered,  that 
alliances  would  become  useless,  if,  in  virtue  of  this  union,  we 
were  not  obliged  to  expose  ourselves  to  some  danger,  or  to  sus- 
tain some  loss  in  the  defence  of  an  ally. 

XLIII.  Here  it  may  be  enquired,  when  several  of  our  allies 
want  assistance,  which  ought  to  be  helped  first,  and  preferable  to 
the  rest  ?  Grotius  answers,  that,  when  two  allies  unjustly  make 
war  upon  each  other,  we  ought  to  succour  neither  of  them  ; 
but  if  the  cause  of  one  ally  be  just,  we  must  not  only  assist 
him  against  strangers,  but  also  against  another  of  our  allies,  un- 
less there  be  some  particular  clause  in  a  treaty,  which  does  not 
permit  us  to  defend  the  former  against  the  latter,  even  though 
the  latter  has  committed  the  injury.  In  fine,  that  if  several  of 
our  allies  enter  into  a  league  against  a  common  foe,  or  make 
war  separately  against  particular  enemies,  we  must  assist  them  all 
equally,  and  according  to  treaty  ;  but  when  there  is  no  possi- 
bility of  assisting  them  all  at  once,  we  must  give  the  preference 
to  the  oldest  confederate. 

XLIV.  3.  Friends,  or  those,  with  whom  we  are  united  bv 
particular  ties  of  kindness  and  affection,  hold  the  third  rank. 
For  though  we  have  not  promised  them  assistance,  determined 
by  a  formal  treaty  ;  yet  the  nature  of  friendship  itself  implies  a 
mutual  engagement  to  help  each  other,  so  far  as  the  stricter  ob- 
ligations the  friends  are  under  will  permit ;  and  the  concern  for 
each  other's  safety  ought  to  be  much  stronger,  than  that,  which 
is  demanded  by  the  simple  connexion  of  humanity. 


!^2  THE  PRINCIPLES  OF 

XLV.  I  say  that  we  may  take  up  arms  for  our  friends,  who 
are  engaged  in  a  just  war  ;  for  we  are  not  under  a  strict  obli*- 
gation  to  assist  then)  \  and  this  condition  ought  to  be  under- 
stood, if  we  can  do  it  easily,  and  without  any  grest  inconvenience 
to  ourselves. 

XLVI.  4.  In  fine  we  may  affirm,  that  the  single  relation,  in 
which  all  mankind  stand  to  each  other,  in  consequence  of  their 
common  nature  and  society,  and  which  forms  the  most  exten- 
sive connexion,  is  sufficient  to  authorise  us  in  assisting  those, 
who  are  unjustly  oppressed  ;  at  least  if  the  injustice  be  consider- 
able, and  manifest,  and  the  party  injured  call  us  to  its  assistance  j 
so  that  we  act  rather  in  its  name,  than  in  our  own.  But  even 
here  we  must  make  this  remark,  that  we  have  a  right  to  succor 
the  distressed  purely  from  humanity,  but  that  we  are  not  under 
a  strict  obligation  of  doing  it.  It  is  a  duty  of  imperfect  obliga- 
tion, which  binds  us  only  so  far,  as  we  can  practise  it,  without 
bringing  a  considerable  inconvenience  upon  ourselves  ;  for,  all 
circumstances  being  equal,  we  may  and  even  ought  to  prefer  our 
own  preservation  to  that  of  another. 

XLVII.  It  is  another  question,  whether  we  can  undertake  a 
war  in  defence  of  the  subjects  of  a  foreign  prince  against  his  in- 
vasions and  oppressions,  merely  from  the  principle  of  humanity  ? 
I  answer,  that  this  is  permitted  only  in  cases,  where  the  tyran- 
ny is  risen  to  sucha  height,  that  the  subjects  themselves  may  law- 
fully take  up  arms,  to  shake  off  the  yoke  of  the  tyrant,  accord- 
ing to  the  principles  already  established. 

XL VIII.  It  is  true,  that  since  the  institution  of  civil  socie- 
ties, the  sovereign  has  acquired  a  peculiar  right  over  his  subjects, 
in  virtue  of  which  he  can  punish  them,  and  no  other  power  has 
any  business  to  interfere.  But  it  is  no  less  certain,  that  this 
right  hath  its  bounds,  and  that  it  cannot  be  lawfully  exercised, 
except  when  the  subjects  are  really  culpable,  or  at  least  when 
their  innocence  is  dubious.  Then  the  presumption  ought  to  be 
in  favor  of  the  sovereign,  and  a  foreign  power  has  no  right  to 
intermeddle  with  what  passes  in  another  state. 

XLIX.  But  if  thetyranny  be  arrived  at  its  greatest  height,  if 
the  oppression  be  manifest  as  when  a  Busiris  or  Phalaris  oppress 
their  subjects  in  so  cruel  a  manner,  as  must  be  condemned  by 


POLITIC  LAW.  173 

every  reasonable  man  living  ;  we  cannot  refuse  the  subjects,  thus 
Oppressed,  the  protection  of  the  laws  of  society.  Every  man, 
as  such,  has  a  right  to  claim  the  assistance  of  other  men,  when 
he  is  really  in  necessity  j  and  every  one  is  obliged  to  give  it 
him,  when  he  can,  by  the  laws  of  humanity.  Now  it  is  certain, 
that  we  neither  do,  nor  can  renounce  those  laws,  by  entering 
into  society,  which  could  n^ver  have  been  established  to  the  pre- 
judice of  human  nature ;  though  we  may  be  justly  suppposed 
to  have  engaged  not  to  implore  a  foreign  aid  for  slight  injuries, 
or  even  for  great  ones,  which  affect  only  a  few  persons. 

But  when  all  the  subjects,  or  a  considerable  part  of  them, 
groan  under  the  oppression  of  a  tyrant,  the  subjects,  on  the  one 
hand,  reenter  into  the  several  rights  of  natural  liberty,  which  au- 
thorizes them  to  seek  assistance  wherever  they  can  find  it ;  and, 
on  the  other  hand,  those,  who  are  in  a  condition  of  giving  it 
them,  without  any  considerable  damage  to  themselves,  not  only 
may,  but  ought  to  do  all  they  can  to  deliver  the  oppressed  front 
the  single  consideration  of  piety  and  humanity. 

L.  It  appears  indeed,  from  ancient  and  modern  history,  that 
the  desire  of  invading  the  states  of  others  is  often  covered  by 
those  pretexts ;  but  the  bad  use  of  a  thing,  does  not  hinder  it 
from  being  just.  Pirates  navigate  the  seas,  and  robbers  wear 
swords,  as  well  as  other  people. 


i.  Bj 


CHAP.  III. 

Of  the  different  kinds  of  tvar. 


BESIDES  the  division  abovementioned  of  war  into  just 
and  unjust,  there  are  several  others,  which  it  is  proper  now  to 
consider.  And  first  war  is  distinguished  into  offensive  and  afes 
fensive. 

II.  Defensive  wars  are  those,  undertaken  for  the  defence  of 
our  persons,  or  the  preservation  of  our  properties.  Offensive 
wars  are  those,  which  are  made  to  constrain  others  to  give  us 
our  due,  in  virtue  of  a  perfect  right  we  have  to  exact  it  of  them  % 
or  to  obtain  satisfaction  for  a  damage  unjustly  done  us*  and  to 
force  them  to  give  caution  for  the  future. 

III.  1.  "We  must  therefore  take  care  not  to  confound  this 


174  THE  PRINCIPLES  OF 

with  the  former  distinction  ;  as  if  every  defensive  war  were  just, 
and,  on  the  contrary,  every  offensive  war  unjust.  It  is  the  pres- 
ent custom  to  excuse  the  most  unjust  wars,  by  saying  they  are 
purely  defensive.  Some  people  think,  that  all  unjust  wars  ought 
to  be  called  offensive,  which  is  not  true  ;  for  if  some  offensive 
wars  be  just,  of  which  there  is  no  doubt,  there  are  also  defen- 
sive wars  unjust ;  as  when  we  defend  ourselves  against  a  prince, 
who  has  had  sufficient  provocation  to  attact  us. 

IV.  2.  Neither  are  we  to  believe,  that  he,  who  first  injures 
another,  begins  by  that  an  offensive  war,  and  that  the  other,  who 
demands  satisfaction  for  tha  injury,  is  always  upon  the  defen- 
sive. There  are  a  great  many  unjust  acts,  which  may  kindle  a 
war,  and  yet  are  not  the  war ;  as  the  ill  treatment  of  a  prince's 
ambassador,  the  plundering  of  his  subjects,  &c.  If  therefore 
we  take  up  arms  to  revenge  such  an  unjust  act,  we  com- 
mence an  offensive,  but  a  just  war ;  while  the  prince,  who 
has  done  the  injury,  and  will  not  give  satisfaction,  makes  a  de- 
fensive, but  an  unjust  war.  An  ofFensive  war  is  therefore  un- 
just only,  when  it  is  undertaken  without  a  lawful  cause  ;  and 
then  the  defensive  war,  which  on  other  occasions  might  be  un- 
just, becomes  just. 

V.  "We  must  therefore  affirm  in  general,  that  the  first,  who 
takes  up  arms,  whether  justly  or  unjustly,  commences  an  offen- 
sive war ;  and  he,  who  opposes  him,  whether  with  or  without 
a  reason,  begins  a  defensive  war.  Those,  who  look  upon  the 
word  offensive  war  to  be  an  odious  term,  as  always  implying 
something  unjust ;  and  who  on  the  contrary,  consider  a  defen- 
sive war  as  inseparable  from  equity,  confound  ideas,  and  perplex 
a  thing  which  of  itself  seems  to  be  sufficiently  clear.  It  is 
with  princes  as  with  private  persons.  The  plaintiff,  who  com- 
mences a  suit  at  law,  is  sometimes  in  the  wrong,  and  sometimes 
in  the  right.  It  is  the  same  with  the  defendant.  It  is  wrong 
to  refuse  to  pay  a  sum,  which  is  justly  due  j  and  it  is  right  to 
forbear  paying  what  we  do  not  owe. 

VI.  In  the  third  place,  Grotius  distinguishes  war  into  pri  - 
vate9  public,  and  mixed.  Public  war  he  calls  that,  which  is 
made  on  both  sides  by  the  authority  of  the  civil  power.  Pri- 
vate war,  that  which  is  made  between  private  persons,  without 


POLITIC  LAW.  175 

any  public  authority  ;  and  lastly  mixed  war>  that,  which,  on 
one  side  is  carried  on  by  public  authority,  and  on  the  other,  by 
private  persons. 

VII.  We  may  observe  concerning  this  division,  that,  if  we 
take  the  word  war  in  the  most  general  and  extensive  sense,  and 
understand  by  it  all  taking  up  arms  with  a  view  to  decide  a  quar- 
rel>  in  contradistinction  to  the  way  of  deciding  a  difference  by 
recourse  to  a  common  judge,  then  this  distinction  may  be  ad- 
mitted ;  but  custom  seems  to  explode  it,  and  has  restrained  the 
signification  of  the  word  war  to  that,  carried  on  between  sov- 
ereign powers.  In  civil  society  private  persons  have  not  a  right 
to  make  war.  And  as  for  the  state  of  nature,  we  have  already 
treated  of  the  right,  which  men  have  in  that  state  to  defend 
and  preserve  their  persons  and  properties  ;  so  that  as  we  are 
here  treating  only  of  the  right  of  sovereigns,  with  regard  to 
each  other,  it  is  properly  public,  and  not  private  war,  that  falls 
under  our  present  consideration. 

VIIL  4.  War  is  also  distinguished  into  solemn  according  t$ 
the  laws  of  nations ',  and  not  solemn.  To  render  a  war  solemn  two 
things  are  requisite ;  the  first,  that  it  be  made  by  the  authority 
of  the  sovereign  ;  the  second,  that  it  be  accompanied  with  cer- 
tain formalities,  as  a  formal  declaration,  &c.  but  of  this  we 
shall  treat  more  fully  in  its  proper  place.  War  not  solemn  is 
that,  which  is  made  either  without  a  formal  declaration,  or 
against  mere  private  persons.  We  shall  here  only  hint  at  this 
division,  deferring  a  more  particular  examination  of  it,  and  an 
enquiry  into  its  effects,  till  we  come  to  treat  of  the  formalities, 
which  usually  precede  war. 

IX.  But  a  question  is  moved,  relating  to  this  subject,  which 
is,  whether  a  magistrate,  properly  so  called,  and  as  such,  ha3 
power  of  making  war  of  his  own  accord  ?  Grotius  answers, 
that,  judging  independently  of  the  civil  laws,  every  magistrate 
seems  to  have  as  much  right,  in  case  of  resistance,  to  take  up 
arms  in  order  to  exercise  his  jurisdiction,  and  to  see  his  com- 
mands executed,  as  to  defend  the  people,  entrusted  to  his  care. 
Puffendorf,  on  the  contrary,  takes  the  negative,  and  passes  cen- 
sure on  the  opinion  of  Grotius. 

X  But  it  is  easy  to  reconcile  these  two  authors,  the  dispute 


l7$  THE  PRINCIPLES  OF 

between  them  being  merely  about  words.  Grotius  fixes  a 
more  vague  and  general  idea  to  the  term  war*  According  to 
him  therefore,  when  a  subordinate  magistrate  takes  up  arms  to 
maintain  his  authority,  and  to  reduce  those  to  reason,  who 
refuse  to  submit  to  him,  he  is  supposed  to  act  with  the  appro- 
bation of  the  sovereign  ;  who,  by  entrusting  him  with  the  share 
in  the  government  of  the  state,  has  at  the  same  time  invested 
him  with  the  power  necessary  to  exercise  it.  And  thus  the 
question  is  only,  whether  every  magistrate,  as  such,  need,  on 
this  occasion,  an  express  order  from  the  sovereign  j  and  wheth- 
er the  constitution  of  civil  societies  in  general  require  it,  inde- 
pendently of  the  laws  of  each  particular  state  ? 

XI.  Now  if  a  magistrate  can  have  recourse  to  arms  for  the 
reduction  of  one  person,  of  two,  ten,  or  twenty,  who  either 
refuse  to  obey  him,  or  attempt  to  hinder  the  exercise  of  his 
jurisdiction,  why  may  he  not  use  the  same  means  against  fifty, 
a  hundred,  a  thousand  ?  &c.  The  greater  the  number  the  dis- 
obedient, the  more  he  will  have  occasion  for  force  to  overcome 
their  resistance.  Now  this  is  what  Grotius  includes  under  the 
term  war. 

XII.  PuiFenderf  agrees  to  this  in  the  main  ;  but  he  pretends 
that  this  coercive  power,  which  belongs  to  a  magistrate  over  dis- 
obedient subjects,  is  not  a  right  of  war  ;  war  seeming  to  be  in- 
tirely  between  equals,  or  at  least,  such  as  pretend  to  equality. 
The  idea  of  Puffendorf  is  certainly  more  regular,  and  agreeable 
to  custom ;  but  it  is  evident,  that  the  difference  between  him 
and  Grotius  consists  only  in  the  greater  or  less  extent,  which 
each  of  them  gives  to  the  word  war. 

XIII.  If  it  be  objected,  it  is  dangerous  to  leave  so  much 
power  to  a  subordinate  magistrate ;  this  may  be  true  j  but  then 
it  proves  only,  that  the  prudence  of  legislators  requires  they 
should  set  bounds  in  this  respect  to  the  power  of  magistrates, 
in  order  to  prevent  an  inconveniency,  which  should  otherwise 
arise  from  the  institution  of  magistracy. 

XIV.  But  to  judge  of  the  power  of  the  magistrates,  or  of 
genarals  and  leaders,  in  respect  to  war,  properly  so  called,  and 
which  is  carried  on  against  a   foreign  enemy,  we  need  only  tq 

*  See  above,  sect,  vii. 


POLITIC  LAW.  177 

attend  to  their  commissions ;  for  it  is  evident,  that  they  cannot 
lawfully  undertake  any  act  of  hostility  of  their  own  head,  and 
without  a  formal  order  of  the  sovereign,  at  least  reasonably 
presumed,  in  consequence  of  particular  circumstances. 

XV.  Thus,  for  example,  a  general,  sent  upon  an  expedition 
with  an  unlimited  authority,  may  act  against  the  enemy  offen- 
sively, as  well  as  defensively,  and  in  such  a  manner,  as  he  shall 
judge  most  advantageous ;  but  he  can  neither  levy  a  new  war, 
nor  make  peace  of  his  own  head.  But  if  his  power  be  limit- 
ed, he  ought  never  to  pass  the  bounds  prescribed,  unless  he  is 
unavoidably  reduced  to  it  by  the  necessity  of  selfdefence  ;  for 
whatever  he  does  in  that  case  is  supposed  to  be  with  the  con- 
sent and  approbation  of  the  sovereign.  Thus,  if  an  admiral  has 
orders  to  be  upon  the  defensive,  he  may,  notwithstanding  such 
a  restraint,  break  in  upon  the  enemy's  fleet,  and  sink  and  burn 
as  many  of  their  ships,  as  he  can,  if  they  come  to  attack  him. 
All,  that  he  is  forbidden,  is  to  challenge  the  enemy  first. 

XVI.  In  general  the  governors  of  provinces  and  cities,  if 
they  have  troops  under  their  command,  may  by  their  own  au- 
thority defend  themselves  against  an  enemy,  who  attacks  them  ; 
but  they  ought  not  to  carry  the  war  into  a  foreign  country,  with- 
out an  express  order  from  their  sovereign. 

XVII.  It  was  in  virtue  of  this  privilege,avising  from  necessi- 
ty, that  Lucius  Pinarius,*  governor  of  Enna  in  Sicily  for  the  Ro- 
mans, upon  certain  information,  that  the  inhabitants  designed  to 
revolt  to  the  Carthaginians,  put  them  all  to  the  sword,  and  thus 
preserved  the  place.  But,  except  in  the  like  case  of  necessity, 
the  inhabitants  of  a  town  have  no  right  to  take  up  arms  in  or- 
der to  obtain  satisfaction  for  those  injuries,  which  the  prince 
neglects  to  revenge. 

XVIII.  A  mere  presumption  of  the  will  of  the  sovereign 
would  not  even  be  sufficient  to  excuse  a  governor,  or  any  other 
officer,  who  should  undertake  a  war,  except  in  case  of  necessity, 
without  either  a  general  or  particular  order.  For  it  is  not  suf- 
ficient to  know  what  part  the  sovereign  would  probably  act, 
if  he  were  consulted,  in  such  a  particular  posture  of  affairs  ;  but 
it  should  rather  be  considered  in  general,  what  it  is  probable  a 

•  Livy„  Ub.  xzi.<  cap.  xviii. 

Y 


1 78  THE  PRINCIPLES  OF 

prince  would  desire  should  be  done  without  consulting  him, 
when  the  matter  will  bear  some  delay,  and  the  affair  is  dubious. 
Now  certainly  sovereigns  will  never  consent,  that  their  minis- 
ters should,  whenever  they  think  proper,  undertake  without  their 
order,  a  thing  of  such  importance,  as  an  offensive  war,  which  is 
the  proper  subject  of  the  present  inquiry. 

XIX.  In  these  circumstances,  whatever  part  the  sovereign 
would  have  thought  proper  to  act,  if  he  had  been  consulted  j 
and  whatever  success  the  war,  undertaken  without  his  orders, 
may  have  had ;  it  is  left  to  the  sovereign  whether  he  will  rati- 
fy, or  condemn  the  act  of  his  minister.  If  he  ratifies  it,  this 
approbation  renders  the  war  solemn,  by  reflecting  back,  as  it  were, 
an  authority  upon  it,  so  that  it  obliges  the  whole  commonwealth. 
But  if  the  sovereign  should  condemn  the  act  of  the  governor, 
the  hostilities  committed  by  the  latter  ought  to  pass  for  a  sort 
of  robbery,  the  fault  of  which  by  no  means  affects  the  state,  pro- 
vided the  governor  is  delivered  up,  or  punished  according  to  the 
laws  of  the  country,  and  proper  satisfaction  be  made  for  the  dam- 
ages sustained. 

XX.  We  may  further  observe,  that  in  civil  societies,  when  a 
particular  member  has  done  an  injury  to  a  stranger,  the  govern- 
or of  the  commonwealth  is  sometimes  responsible  for  it,  so  that 
war  may  be  declared  against  him  on  that  account.  But  to 
ground  this  kind  of  imputation,  we  must  necessarily  suppose  one 
of  these  two  things,  sufferance,  or  reception  j  viz.  either  that 
the  sovereign  has  suffered  this  harm  to  be  done  to  the  stranger, 
or  that  he  afforded  a  retreat  to  the  criminal. 

XXI.  In  the  former  case  it  must  be  laid  down  as  a  maxim, 
that  a  sovereign,  who,  knowing  the  crimes  of  his  subjects,  as 
for  exampl?,  that  they  practise  piracy  on  strangers  ;  and  being 
also  able  and  obliged  to  hinder  it,  does  not  hinder  it,  renders 
himself  criminal,  because  he  has  consented  to  the  bad  action,  the 
commission  of  which  he  has  permitted,  and  consequently  fur- 
nished a  just  reason  of  war. 

XXII.  The  two  conditions  abovementioned,  I  mean  the 
knowledge  and  sufferance  of  the  sovereign,  are  absolutely  neces- 
sary, the  one  not  being  sufficient  without  the  other,  to  commu- 
nicate any  share  in  the  guilt.     Now  it  is  presumed,  that  a  sove- 


POLITIC  LAW.  179 

reign  knows  what  his  subjects  openly  and  frequently  commit  j 
and  as  to  his  power  of  hindering  the  evil,  this  likewise  is  always 
presumed,  unless  the  want  of  it  be  clearly  proved. 

XXIII.  The  other  way,  in  which  a  sovereign  renders  him- 
self guilty  of  the  crime  of  another,  is  by  allowing  a  retreat  and 
admittance  to  the  criminal,  and,  screening  him  from  punishment. 
Puffendorf  pretends,  that  if  we  are  obliged  to  deliver  up  a  crim- 
inal, who  takes  shelter  among  us,  it  is  rather  in  virtue  of  some 
treaty  on  this  head,  than  in  consequences  of  a  common  and  in- 
dispensable obligation. 

XXIV.  But  Puffendorf  I  think  has,  without  sufficient  reasons, 
abandoned  the  opinion  of  Grotius,  which  seems  to  be  better 
founded.  The  principles  of  the  latter,  in  regard  to  the  present 
question,  may  be  reduced  to  these  following. 

1.  Since  the  establishment  of  civil  societies,  the  right  of  pun- 
ishing public  offences,  which  every  person,  if  not  chargeable  him- 
self with  such  a  crime,  had  in  the  stat^of  nature,  has  been  trans- 
ferred to  the  sovereign,  so  that  the  latter  alone  hath  the  privilege 
of  punishing,  as  he  thinks  proper,  those  transgressions  of  his 
subjects,  which  properly  interest  the  public. 

XXV.  But  this  right  of  punishing  crimes  is  not  so  exclusive- 
ly theirs,  but  that  either  public  bodies  or  their  governors  have  a 
right  to  procure  the  punishment  of  them  in  the  same  man- 
ner, as  the  laws  of  particular  countries  allow  private  people 
the  prosecution  of  crimes  before  the  civil  tribunal. 

XXVI.  3.  This  right  is  still  stronger  with  respect  to  crimes, 
by  which  they  are  directly  injured,  and  which  they  have  a  per- 
fect right  of  punishing,  for  the  support  of  their  honor  and  safe- 
ty. In  such  circumstances  the  state,  to  which  the  criminal  re- 
tires, ought  not  to  obstruct  the  right,  that  belongs  to  the  other 
power. 

XXVII.  4.  Now  as  one  prince  does  not  generally  permit 
another  to  send  armed  men  into  his  territories,  upon  the  score 
of  exacting  punishment  (for  this  would  indeed  be  attended  with 
terrible  inconveniences)  it  is  reasonable  the  sovereign,  in  whose 
dominions  the  offender  lives,  or  has  taken  shelter,  should  either 
punish  the  criminal  according  to  his  demerits,  or  deliver  him 
up  to  be  punished  at  the  discretion  of  the  injured  sovereign. 


i8o  THE  PRINCIPLES  OP 

This  is  that  delivering  up,  of  which  we  have  so  many  example? 
in  history. 

XXVIII.  5.  The  principles  here  laid  down  concerning  the 
obligation  of  punishing  or  delivering  up,  regard  not  only  the 
criminals,  who  have  always  been  subjects  of  the  government 
they  now  live  under,  but  also  those,  who  after  the  commission 
of  a  crime,  have  taken  shelter  in  the  country. 

XXIX.  6.  In  fine  we  must  observe,  that  the  right  of  de- 
manding fugitive  delinquents  to  punishment  has  not  for  some 
ages  last  past  been  insisted  upon  by  sovereigns,  in  most  parts  of 
Europe,  except  in  crimes  against  the  state,  or  those  of  a  very 
heinous  nature.  As  to  less  crimes,  they  are  connived  at  on 
both  sides,  unless  it  is  otherwise  agreed  on  by  some  particular 
treaty. 

XXX.  Besides  the  kinds  of  war,  hitherto  mentioned,  we 
may  also  distinguish  them  into  perfect  and  imperfect.  A  per- 
fect war  is  that,  which  entirely  interrupts  the  tranquillity  of  the 
state,  and  lays  a  foundation  for  all  possible  acts  of  hostility. 
An  imperfect  war,  on  the  contrary,  is  that,  which  does  not  en- 
tirely interrupt  the  peace,  but  only  in  certain  particulars,  the 
public  tranquillity  being  in  other  respects  undisturbed. 

XXXI.  This  last  species  of  war  is  generally  called  reprisal.-;, 
of  the  nature  of  which  we  shall  give  here  some  account.  By 
reprisals  then  we  mean  that  imperfect  hind  of  ivar,  or  those  acts 
cf  hostility,  ivhich  sovereigns  exercise  against  each  ether,  or, 
ivith  their  consent,  their  subjects,  by  seizing  the  persons  or 
effects  of  the  subjects  of  a  foreign  commonwealth,  that  refuseth  to 
do  us  justice  ;  ivith  a  view  to  obtain  security,  and  to  recover  out' 
right,  and  in  case  of  refusal,  to  do  justice  to  ourselves,  without 
any  other  interruption  of  the  public  tranquillity. 

XXXII.  Grotius  pretends,  that  reprisals  are  not  founded  on 
the  law  of  nature  and  necessity,  but  only  on  a  kind  of  arbitra- 
ry law  of  nations,  by  which  most  of  them  have  agreed,  that  the 
goods  belonging  to  the  subjects  of  a  foreign  state  should  be  a 
pledge  or  security,  as  it  were,  for  what  that  state,  or  the  gover- 
nor of  it,  might  owe  us,  either  directly  and  in  their  own  names, 
or  by  rendering  themselves  responsible  for  the  actions  of  others, 
Upon  refusing  to  administer  justice. 


POLITIC  LAW.  181 

XXXIII.  But  this  is  far  from  being  an  arbitrary  right,  found- 
ed upon  a  pretended  law  of  nations,  whose  existence  we  can- 
not prove,  depending  on  the  greater  or  less  extent  of  custom  no 
way  binding  in  the  nature  of  a  law.  The  right  we  here  speak 
of  is  a  consequence  of  the  constitution  of  civil  societies,  and  an 
application  of  the  maxims  of  the  law  of  nature  to  that  consti- 
tution. 

XXXIV.  During  the  independence  of  the  state  of  nature, 
and  before  the  institution  of  civil  government,  if  a  person  had 
been  injured,  he  could  come  upon  those  only,  who  had  done 
the  wrong,  or  upon  their  accomplices ;  because  there  was  then 
no  tie  between  men,  in  virtue  of  which  a  person  might  be  deem- 
ed to  have  consented,  in  some  manner,  to  what  others  did  even 
without  his  participation. 

XXXV.  But  since  civil  societies  have  been  formed,  that  is 
to  say,  communities,  whose  members  are  all  united  together  for 
their  common  defence,  there  has  necessarily  arisen  thence  a 
conjunction  of  interests  and  wills  ;  which  is  the  reason,  that  as 
the  society  cr  the  powers,  which  govern  it,  engage  to  defend 
each  other  against  every  insult;  so  each  individual  may  be 
deemed  to  have  engaged  to  answer  for  the  conduct  of  the  so- 
ciety, of  which  he  is  a" member,  or  of  the  powers,  which  govern  it. 

XXXVI.  No  human  establishment  can  supersede  the  obli- 
gation of  that  general  and  inviolable  law  of  nature,  that  the  dam- 
age ice  have  done  to  another  should  be  repaired  ;  except  those,  who 
are  thereby  injured,  have  manifestly  renounced  their  right  of  de- 
manding reparation.  And  when  such  establishments  hinder 
those,  who  are  injured,  from  obtaining  satisfaction  so  easily,  as 
they  might  without  them,  this  difficulty  must  be  made  up,  by 
furnishing  the  persons  interested  with  all  the  other  possib'e  meth- 
ods of  doing  themselves  justice. 

XXXVII.  Now  it  is  certain,  that  societies,  or  the  powers, 
which  govern  them,  by  being  armed  with  the  force  of  the  whole 
body,  are  sometimes  encouraged  to  laugh  with  impunity  at 
strangers,  who  come  to  demand  their  due  ;  and  that  every  sub- 
ject contributes,  one  way  or  other,  to  enable  them  tc  act  in  this 
manner  *,  so  that  he  may  be  supposed  in  some  measure  to  consent 
to  it.      But,  if  he  does  not  in  reality  censent,  there  is  after  all 


J  8a  THE  PRINCIPLES  OF 

no  other  manner  of  facilitating,  to  injured  strangers,  the  prose- 
cution of  their  rights,  which  is  rendered  difficult  by  the  united 
force  of  the  whole  body,  than  to  authorise  them  to  come  upon 
all  those,  who  are  members  of  it. 

XXXVIII.  Let  us  therefore  conclude,  that,  by  the  constitu- 
tion of  civil  societies,  every  subject,  so  long  as  he  continues  such, 
is  responsible  to  strangers  for  the  conduct  of  the  society,  or  of 
him,  who  governs  it  j  with  this  clause  however,  that  he  may  de- 
mand indemnification,  when  there  is  any  fault  or  injustice  oa 
the  part  of  his  superiors.  But  if  it  should  be  any  man's  mis- 
fortune to  be  disappointed  of  this  indemnification,  he  must  look 
upon  it  as  one  of  those  inconveniences,  which,  in  a  civil  state, 
the  constitution  of  human  affairs  renders  almost  inevitable.  If 
to  all  these  we  add  the  reasons,  alledged  by  Grotius,  we  shall 
plainly  see,  that  there  is  no  necessity  for  supposing  a  tacit  con- 
sent of  the  people  to  found  the  right  of  reprisals. 

XXXIX.  As  reprisals  are  acts  of  hostility,  and  often  the  pre- 
lude or  forerunner  of  a  complete  and  perfect  war,  it  is  plain  that 
none  but  the  sovereign  can  lawfully  use  this  right,  and  that  the 
subjects  can  make  no  reprisals,  but  by  his  order  and  authority. 

XL.  Besides  it  is  proper,  that  the  wrong  or  injustice  done 
us,  and  which  occasions  the  reprisals,  should  be  clear  and  evi- 
dent, and  that  the  thing  in  dispute  be  of  great  consequence. 
For  if  the  injury  be  dubious,  or  of  no  importance,  it  would  be 
equally  unjust  and  dangerous  to  proceed  to  this  extremity,  and 
to  expose  ourselves  to  all  the  calamities  of  an  open  war.  Nei- 
ther ought  we  to  come  to  reprisals,  before  we  have  tried,  by  the 
ordinary  means,  to  obtain  justice  for  the  injury  committed.  For 
this  purpose  we  must  apply  to  the  prince,  whose  subjects  have 
done  us  the  injustice  ;  and  if  the  prince  takes  no  notice,  or  refus- 
es satisfaction,  we  may  then  make  reprisals,  in  order  to  obtain  it. 

XLI.  In  a  word,  we  must  not  have  recourse  to  reprisals,  ex- 
cept when  all  the  ordinary  means  of  obtaining  satisfaction  have 
failed ;  so  that,  for  instance,  if  a  subordinate  magistrate  has  re- 
fused us  justice,  we  are  not  permitted  to  use  reprisals  before  we 
apply  to  the  sovereign  himself,  who  will  perhaps  grant  us  satis- 
faction. In  such  circumstances,  we  raay  therefore  either  de- 
tha  the  subjects  of  a  foreign  state,  if  they  withhold  ours  ;  or  we 


POLITIC  LAW.  185 

may  seize  their  goods  and  effects.  But' whatever  just  reason  we 
may  have  to  make  reprisals,  we  can  never  directly,  and  for  that 
reason  alone,  put  those  to  death,  whom  we  have  seized  upon, 
but  only  secure  them,  and  not  use  them  ill,  till  we  have  obtain- 
ed satisfaction ;  so  that,  during  all  that  time,  they  are  to  be  con- 
sidered as  hostages. 

XLII.  In  regard  to  the  goods,  seized  by  the  right  of  repris- 
als, we  must  take  care  of  them  till  the  time,  in  which  satisfac- 
tion ought  to  be  made,  is  expired  9  after  which  we  may  adjudge 
them  to  the  creditor,  or  sell  them  for  the  payment  of  the 
debt  j  returning  to  him,  from  whom  they  were  taken,  the  over- 
plus, when  all  charges  are  deducted. 

XLIII.  We  must  also  observe,  that  it  is  not  permitted  to  use 
reprisals,  except  with  regard  to  subjects,  properly  so  called,  and 
their  effects  j  for  as  to  strangers,  who  do  but  pass  through  a 
country,  or  only  come  to  make  a  short  stay  in  it,  they  have  not 
a  sufficient  connexion  with  the  state,  of  which  they  are  only 
members  but  for  a  time,  and  in  an  imperfect  manner ;  so  that 
we  cannot  indemnify  ourselves  by  them,  for  the  loss  we  have 
sustained  by  any  native  of  the  country,  and  by  the  refusal  of  the 
sovereign  to  render  us  justice.  We  must  further  except  ambas- 
sadors, who  are  sacred  persons,  even  in  the  height  of  war.  But 
as  to  women,  clergymen,  men  of  letters,  &c.  the  law  of  nature 
grants  them  no  privilege  in  this  case,  if  they  have  nototherwise 
acquired  it  by  virtue  of  some  treaty. 

XLIV.  Lastly,  some  political  writers  distinguish  those  wars, 
which  are  carried  on  between  two  or  more  sovereigns,  from 
those  of  the  subjects  against  their  governors.  But  it  is  plain, 
that,  when  subjects  take  up  arms  against  their  prince,  they  ei- 
ther do  it  for  just  reasons,  and  according  to  the  principles  estab- 
lished in  this  work,  or  without  a  just  and  lawful  cause.  In  the 
latter  case,  it  is  rather  a  revolt  or  insurrection,  than  a  war,  prop- 
erly so  called.  But  if  the  subjects  have  just  reason  to  resist  the 
sovereign,  it  is  strictly  a  war  ;  since,  in  such  a  crisis,  there  are 
neither  sovereign  nor  subjects,  all  d^pendance  and  obligation  hav- 
ing ceased.  The  two  opposite  parties  are  then  in  a  state  of 
nature  and  equality,  trying  to  obtain  justice  by  their  own  prop- 
er strength,  which  constitutes  what  we  understand  properly  by 
the  term  war, 


i$4  THE  PRINCIPLES  OF 


CHAP.  IV. 

Of  those  things ,  which  ought  to  precede  war. 


i.  Hi 


.OWEVER  just  reason  we  may  have  to  make  war, 
yet,  as  it  inevitably  brings  along  with  it  an  incredible  number  of 
calamities,  and  oftentimes  acts  of  injustice,  it  is  certain,  that  we 
ought  not  to  proceed  too  easily  to  a  dangerous  extremity,  which 
may  perhaps  prove  fatal  to  the  conqueror  himself. 

II.  The  following  are  the  measures,  which  prudence  directs 
to  be  observed  in  these  circumstances. 

i.  Supposing  the  reason  of  the  war  just  in  itself,  yet  the  dis- 
pute ought  to  be  about  something  of  great  consequence  ;  since 
it  is  better  even  to  relinquish  part  of  our  right,  when  the  thing 
is  not  considerable,  than  to  have  recourse  to  arms  to  defend  it. 

2.  We  ought  to  have  at  least  a  probable  appearance  of  suc- 
cess j  for  it  would  be  a  criminal  temerity,  to  expose  ourselves 
to  certain  destruction,  and  to  run  into  a  greater,  in  order  to 
avoid  a  lesser  evil. 

3.  Lastly,  there  should  be  a  real  necessity  for  taking  up  arms; 
that  is,  we  ought  not  to  have  recourse  to  force  ;  but  when  we 
can  employ  no  milder  method  of  recovering  our  right,  or  of  de- 
fending ourselves  from  the  evils,  with  which  we  are  menaced. 

III.  These  measures  are  agreeable  not  only  to  the  princi- 
ples of  prudence,  but  also  to  the  fundamental  maxims  of  socia- 
bility, and  the  love  of  peace  ;  maxims  of  no  less  force  with  res- 
pect to  nations,  than  individuals.  By  these  a  sovereign  must 
therefore  be  necessarily  directed  5  justice  obliges  him  to  it,  in 
consequence  of  the  very  nature  and  end  of  government.  For, 
as  he  ought  to  take  particular  care  of  the  state,  and  of  his  sub- 
jects, he  should  not  expose  them  to  the  evils,  with  which  war 
is  attended,  except  in  the  last  extremity,  and  when  there  is  no 
other  expedient  left  but  that  of  arms. 

IV.  It  is  not  therefore  sufficient,  that  the  war  be  just  in  it- 
self, with  respect  to  the  enemy ;  it  must  also  be  so  with  respect 
to  ourselves  and  cur  subjects.  Plutarch  informs  us,  "  that, 
*'  among  the  ancient  Romans,  when  the  Fecialeshad  determine 


POLITIC  LAW.  185 

"  ed,  that  a  war  might  be  justly  undertaken,  the  senate  after- 
"  wards  examined  whether  it  would  be  advantageous  to  engage 
"  in  it." 

V.  Now  among  the  methods  of  deciding  differences  between 
nations  without  a  war,  there  are  three  most  considerable.  The 
first  is  an  amicable  conference  between  the  contending  parties ; 
with  respect  to  which  Cicero  judiciously  observes,  "  that  this 
"  method  of  terminating  a  difference  by  a  discussion  of  reasons 
"  on  both  sides  is  peculiarly  agreeable  to  the  nature  of  man  5 
"  that  force  belongs  to  brutes,  and  that  we  never  ought  to  have 
"  recourse  to  it,  but  when  we  cannot  redress  our  grievances  by 
"  any  other  method." 

VI.  The  second  way  of  terminating  a  difference  between  those 
who  have  not  a  common  judge,  is  to  put  the  matter  to  arbitra- 
tion. The  more  potent  indeed  often  neglect  this  method,  but 
it  ought  certainly  to  be  followed  by  those,  who  have  any  regard 
to  justice  and  peace  ;  and  it  is  a  way,  that  has  been  taken  by 
great  princes  and  people. 

VII.  The  third  method,  in  fine,  which  may  be  sometimes  us- 
ed with  success,  is  that  of  casting  lots.  I  say  we  may  some- 
times use  this  way  •,  for  it  is  not  always  lawful  to  refer  the  issue 
of  a  difference,  or  of  a  war,  to  the  decision  of  lots.  This  meth- 
od cannot  be  taken,  except  when  the  dispute  is  about  a  thing, 
in  which  we  have  a  full  property,  and  which  we  may  renounce 
whenever  we  please.  But  in  general,  the  obligation  of  the  sover- 
eign to  defend  the  lives,  the  honor,  and  the  religion  of  his  subjects, 
as  also  his  obligation  to  maintain  the  dignity  of  the  state,  are  of 
too  strong  a  nature  to  suffer  him  to  renounce  the  most  natural 
and  most  probable  means  of  his  own  security,  as  well  as  that  of 
the  public,  and  to  refer  his  case  to  chance,  which  in  its  nature 
is  entirely  precarious. 

VIII.  But  if  upon  due  examination  he,  who  has  been  unjust- 
ly attacked,  finds  himself  so  weak,  that  he  has  no  probability  of 
making  any  considerable  resistance,  he  may  reasonably  decide 
the  difference  by  way  of  lot,  in  order  to  avoid  a  certain,  by  ex- 
posing himself  to  an  uncertain  danger  ;  which,  in  this  case,  is 
the  least  of  two  inevitable  evils. 

IX.  There  is  also  another  method,  which  has  some  relation 

Z 


I 


1 86  THE  PRINCIPLES  OF 

to  lots.  This  consists  in  single  combats,  which  have  often  been 
used  to  terminate  such  differences,  as  were  likely  to  produce  a 
war  between  two  nations.  And  indeed,  to  prevent  a  war,  and 
its  concomitant  evils,  I  see  no  reason,  that  can  hinder  us  from 
referring  matters  to  a  combat  between  a  certain  number  of  men, 
agreed  upon  by  both  parties.  History  furnishes  us  with  seve- 
ral examples  of  this  kind,  as  that  of  Turnus  and  Eneas,  Mene- 
laus  and  Paris,  the  Horatii  and  the  Curiatii. 

X.  It  is  a  question  of  some  importance,  to  know  whether  it 
be  lawful  thus  to  expose  the  interest  of  a  whole  state  to  the  fate 
of  those  combats?  It  appears  on  the  one  hand,  that  by  such 
means  we  spare  the  effusion  of  human  blood,  and  abridge  the 
calamities  of  war ;  on  the  other  hand,  it  promiseth  fairer,  and 
looks  like  a  better  venture,  to  stand  the  shock  even  of  a  bloody 
war,  than  by  one  blow  to  risk  the  liberty  and  safety  of  the  state 
by  a  decisive  combat ;  since,  after  the  loss  of  one  or  two  bat- 
tles, the  war  may  be  set  on  foot  again,  and  a  third  perhaps 
may  prove  successful. 

XI.  However  it  may  be  said,  that,  if  otherwise  there  is  no 
prospect  of  making  a  good  end  of  a  war,  and  if  the  liberty  and 
safety  of  the  state  are  at  stake ;  there  seems  to  be  no  reason 
against  taking  this  step,  as  the  least  of  two  evils. 

XII.  Grotius,  in  examining  this  question,  pretends  that  these 
combats  are  not  reconcileable  to  internal  justice,  though  they  are 
approved  by  the  external  right  of  nations;  and  that  private  per- 
sons cannot  innocently  expose  their  lives,  of  their  own  accord, 
to  the  hazard  of  a  single  combat,  though  such  a  combat  may  be 
innocently  permitted  by  the  state  or  sovereign,  to  prevent  great- 
er mischiefs.  But  it  has  been  justly  observed,  that  the  argu- 
ments, used  by  tliis  great  man,  either  prove  nothing  at  all,  or 
prove  at  the  same  am«,  that  it  is  never  lawful  to  venture  one's 
life  in  any  combat  whatever. 

XIII.  We  may  even  affirm,  that  Grotius  is  not  very  consis- 
tent with,  himself,  since  he  permits  this  kind  of  combats,  when 
otherwise  there  is  the  greatest  probability,  that  he,  who  prose- 
cutes an  unjust  cause,  will  be  victorious,  and  thereby  destroy  a 
great  number  of  innocent  persons.  For  this  exception  evinces, 
that  the  thing  is  not  bad  in  itself,  and  that  all  the  harm,  which 


POLITIC  LAW.  187 

can  be  In  this  case,  consists  in  exposing  our  own  lite,  or  that 
of  others,  without  necessity,  to  the  hazard  of  a  single  combat. 
The  desire  of  terminating,  or  preventing  a  war,  which  has 
always  terrible  consequences,  even  to  the  victorious,  is  so  com- 
mendable, that  it  may  excuse,  if  not  entirely  justify  those,  who 
engage  either  themselves  or  others  even  imprudently  in  a  com- 
bat of  this  kind.  Be  this  as  it  may,  it  is  certain  that  in  such 
a  case  those,  who  combat  by  the  order  of  the  state,  are  entirely 
innocent ;  for  they  are  no  more  obliged  to  examine  whether 
the  state  acts  prudently  or  not,  than  when  they  are  sent  upon 
an  assault,  or    to  fight  a  pitched    battle. 

XIV.  We  must  however  observe,  that  it  was  a  foolish  su- 
perstition in  those  people,  who  looked  upon  a  set  combat,  as  a 
lawful  method  of  determining  all  differences,  even  between  in- 
dividuals, from  a  persuasion,  that  the  Deity  gave  always  the 
victory  to  the  good  cause  ;  for  which  reason  they  called  this 
kind  of  combat  the  judgment  of  God* 

XV.  But  if  after  having  used  all  our  endeavours  to  terminate 
differences  in  an  amicable  manner,  their  remains  no  further 
hope,  and  we  are  absolutely  constrained  to  undertake  a  war,  we 
ought  first  to  declare  it  in  form. 

XVI.  This  declaration  of  war,  considered  in  itself,  and  in- 
dependently of  the  particular  formalities  of  each  people,  does 
not  simply  belong  to  the  law  of  nations,  taking  this  word  in  the 
sense  of  Grotius,  but  to  the  law  of  nature  itself.  Indeed  pru- 
dence and  natural  equity  equally  require,  that,  before  we  take 
up  arms  against  any  state,  we  should  try  all  amicable  methods 
to  avoid  coming  to  such  an  extremity.  We  ought  then  to  sum*- 
mon  him,  who  has  injured  us,  to  make  a  speedy  satisfaction, 
that  we  may  see  whether  he  will  net  have  regard  to  himself,  and 
not  put  us  to  the  hard  necessity  of  pursuing  our  right  by  force 
of  arms. 

XVII.  From  what  has  been  said  it  follows,  that  this  decla- 
ration takes  place  only  in  offensive  wars ;  for,  when  we  are  ac- 
tually attacked,  that  alone  gives  us  reason  to  believe,  that  the 
enemy  is  resolved  not  to  listen  to  an  accommodation. 

XVIII.  From  this  it  also  follows,  that  we  ought  not  to  com- 
mit acts  of  hostility  immediately  upon  declaring  war,  but  should 


188  THE  PRINCIPLES  OF 

wait  so  long  at  least,  as  we  can  without  doing  ourselves  a  pre- 
judice, until  he,  who  has  clone  us  the  injury,  plainly  refuses  to 
give  us  satisfaction,  and  has  put  himself  in  a  condition  to  re- 
ceive us  with  bravery  and  resolution  ;  otherwise  the  declaration 
of  war  would  be  only  a  vain  ceremony.  For  we  ought  to  neg- 
lect no  means  to  convince  all  the  world,  and  even  the  enemy 
himself,  that  it  is  only  absolute  necessity,  that  obliges  us  to  take 
up  arms  for  the  recovery  or  defence  of  our  just  rights  ;  after 
having  tried  every  other  method,  and  given  the  enemy  full  time 
to  consider. 

XIX.  Declarations  of  war  are  distinguished  into  conditional 
and  absolute.  The  conditional  is  that,  which  is  joined  with  a 
solemn  demand  of  restitution,  and  with  this  condition,  that  if 
the  injury  be  not  repaired,  we  shall  do  ourselves  justice  by  arms. 
The  absolute  is  that,  which  includes  no  condition  ;  and  by  which 
we  absolutely  renounce  the  friendship  and  society  of  him,  a- 
gainst  whom  we  declare  war.  But  every  declaration  of  war, 
in  whatever  manner  it  be  made,  is  of  its  own  nature  condition- 
al j*  for  we  ought  always  to  be  disposed  to  accept  of  a  reason- 
able satisfaction,  so  soon  as  the  enemy  offers  it  ;  and  on  this 
account  some  writers  reject  this  distinction  of  the  declaration 
of  war  into  conditional  and  absolute.  But  it  may  nevertheless 
be  maintained,  bv  supposing  that  he,  against  whom  war  is  de- 
clare! purely  and  simply,  has  already  shown,  that  he  had  no 
d'es  gn  to  spare  us  the  necessity  of  taking  up  arms  against  him. 
So  far  therefore  the  declaration  may,  at  least  as  to  the  form  of 
it,  be  pure  and  simple,  without  any  prejudice  to  tiie  disposition, 
in  which  we  ought  always  to  be,  if  the  enemy  will  hearken  to 
reason.  But  this  relates  to  the  conclusion,  rather  than  the  com- 
mencement of  a  war ;  to  the  latter  of  which  the  distinction  of 
conditional  and  absolute  declarations  properly  belongs. 

XX.  As  soon  as  war  has  been  declared  against  a  sovereign, 
it  is  presumed  to  be  declared  at  the  same  time  not  only  against 
all  his  subjects,  who,  in  conjunction  with  him,  form  one  moral 
person  ;  but  also  against  all  those,  who  shall  afterwards  join 
him,  and  who,  with  respect  to  the  principal  enemy,  are  to  be 
looked  upon  only  as  allies,  or  adherents. 

See  above,  numb,  xviii. 


POLITIC  LAW.  189 

XXI.  As  to  the  formalities,  observed  by  different  nations  in 
declaring  war  they  are  all  arbitrary  in  themselves.  It  is  there- 
fore a  matter  of  indifference,  whether  the  declaration  be  made, 
by  envoys,  heralds,  or  letters  ;  whether  the  sovereign  in  person, 
or  to  his  subjects,  provided  the  sovereign  cannot  plead  ignorance 
of  it. 

XXII.  With  respect  to  the  reasons  why  a  solemn  denuncia- 
tion was  required  into  such  a  war,  as  by  the  law  of  nations  is 
called  just ;  Grotius  pretends  it  was,  that  the  people  might  be 
assured,  that  the  war  was  not  undertaken  by  private  authority, 
but  by  the  consent  of  one  or  other  of  the  nations,  or  of  their 
sovereigns. 

XXIII.  But  this  reason  of  Grotius's  seems  to  be  insufficient  j 
for  are  we  more  assured,  that  the  war  is  made  by  public  au- 
thority, when  a  herald  for  instance  comes  to  declare  it  with  cer- 
tain ceremonies,  than  we  should  be,  when  we  see  an  army  up- 
on our  frontiers,  commanded  by  a  principal  person  of  the  state, 
and  ready  to  enter  our  country  ?  Might  it  not  more  easily  hap- 
pen, that  one,  or  a  few  persons,  should  assume  the  character 
of  herald,  than  that  a  single  man  should,  of  his  own  authority, 
raise  an  army,  and  march  at  the  head  of  it  to  the  frontiers, 
without  the  sovereign's  knowledge  ? 

XXIV.  The  truth  is,  the  principal  end  of  a  declaration  of 
W2r,  or  at  least  what  has  occasioned  its  institution,  is  to  let  all 
the  world  know,  that  there  was  just  reason  to  take  up  arms, 
and  to  signify  to  the  enemy  himself,  that  it  had  been,  and  still 
was,  in  his  power  to  avoid  it.  The  declarations  of  war,  and 
the  manifestos  published  by  princes,  are  marks  of  the  due  re- 
spect they  have  for  each  other,  and  for  society  in  general,  to 
whom  by  such  means  they  give  an  account  of  their  conduct,  in 
order  to  obtain  the  public  approbation.  This  appears  particu- 
larly by  the  manner  in  which  the  Romans  made  those  denuncia- 
tions. The  person  sent  for  this  purpose  took  the  gods  to  wit- 
ness, that  the  nation,  against  whom  they  had  declared  war,  had 
acted  unjustly,  by  refusing  to  comply  with  what  law  and  justice 
required. 

XXIV.  Lastly  it  is  to  be  observed,  that  we  ought  not  to  con- 
found the  declaration  with  the  publication  of  war.      This  last  is 


I  go  THE  PRINCIPLES  OF 

made  in  favor  of  the  subjects  of  the  prince,  who  declares  the 
■war,  and  to  inform  them,  that  they  are  henceforth  to  look  up- 
on such  a  nation,  as  their  enemy,  and  to  take  their  measures  ac- 
cordingly. 

CHAP.  V. 

General  rules  to  know  ivhat  is  allo%vable  in  war. 


I.  XT  is  not  enough,  that  a  war  be  undertaken  with  jus- 
tice, or  for  a  lawful  reason,  and  that  we  observe  the  other  con- 
ditions hitherto  mentioned ;  but  we  ought  also,  in  the  prose- 
cution of  it,  to  be  directed  by  the  principles  of  justice,  and 
humanity,  and  not  to  carry  the  liberties  of  hostility  beyond 
those  bounds. 

II.  Grotius,  in  treating  this  subject,  establishes  three  general 
rules,  as  so  many  principles,  which  serve  to  explain  the  extent 
of  the  rights  of  war. 

III.  The  first  is,  that  every  thing,  which  has  a  connexion 
morally  necessary  with  the  end  of  the  war,  is  permitted,  and 
no  more.  For  it  would  be  to  no  purpose  to  have  a  right  to  do 
a  thing,  if  we  could  not  make  use  of  the  necessary  means  to 
bring  it  about.  But,  at  the  same  time,  it  would  not  be  just, 
that,  under  a  pretence  of  defending  our  l'ight,  we  should  think 
every  thing  lawful,  and  proceed  without  any  manner  of  neces- 
sity, to  the  last  extremity. 

IV.  The  second  rule.  The  right  we  have  against  an  enemy, 
and  which  we  pursue  by  arms,  ought  not  to  be  considered  only 
with  respect  to  the  cause,  which  gave  rise  to  the  war  ;  but  al- 
so with  respect  to  the  fresh  causes,  which  happen  afterwards, 
during  the  prosecution  of  hostilities;  just  as  in  courts  of  law, 
one  of  the  parties  often  acquires  some  new  right  before  the  end 
of  the  suit.  This  is  the  foundation  of  the  right  we  have  to  act 
against  those,  who  join  our  enemy,  during  the  course  of  the 
war,  whether  they  be  his  dependants  or  not. 

V.  The  third  rule,  in  fine,  is,  that  there  are  a  great  many 
things,  which,  though  otherwise  unlawful,  are  yet  permitted  in 


POLITIC  LAW.  191 

war,  because  they  are  inevitable  consequences  of  it,  and  happen 
contrary  to  our  intention,  otherwise  there  would  never  be  any 
way  of  making  W3r  without  injustice  ;  and  the  most  innocent 
actions  would  be  looked  upon  as  criminal,  since  there  are  but 
few,  from  which  some  evil  may  not  accidentally  arise,  contrary 
to  the  intention  of  the  agent. 

VI.  Thus  for  example,  in  recovering  our  own,  if  just  so 
much,  as  is  precisely  our  due,  cannot  be  had,  we  have  a  right 
to  take  more,  but  under  the  obligation  of  returning  the  value  of 
the  overplus.  Hence  we  may  attack  a  ship  full  of  pirates, 
though  there  may  be  women,  or  children  or  other  innocent  per- 
sons on  board  we  must  needs  be  exposed  to  the  danger  of  being 
involved  in  the  ruin  of  those,  whom  we  may  justly  destroy. 

VII.  This  is  the  extent  of  the  right  we  have  against  an  en- 
emy, in  consequence  of  a  state  of  war.  By  a  state  of  war  that 
of  society  is  abolished  ;  so  that  whoever  decisis  himself  my  en- 
emy gives  me  liberty  to  use  violence  against  him  in  infinitum,  or 
so  far,  as  I  please  ;  and  that  not  only  till  I  have  repulsed  the 
danger,  that  threatened  me,  or  till  I  have  recovered,  or  forced 
from  him,  what  he  either  unjustly  deprived  me  of,  or  refused 
to  pay  me,  but  till  I  have  further  obliged  him  to  give  me  good 
security  for  the  future.  It  is  not  therefore  always  unjust  to  re- 
turn a  greater  evil  for  a  less. 

VIII.  But  it  is  also  to  be  observed,  that  though  these  maxims 
are  true  according  to  the  strict  right  of  war,  yet  the  law  of  hu- 
manity fixes  bounds  to  this  right.  That  law  directs  us  to  consid- 
er, not  only  whether  such  or  such  acts  of  hostility  may,  without 
injury,  be  committed  against  an  enemy;  but  also  whether  they 
are  worthy  of  a  humane  or  generous  conqueror.  Thus,  so  far  as 
our  own  defence  and  future  security  will  permit,  we  must  mod- 
erate the  evils,  we  inflict  upon  an  enemy,  by  the  principles  of 
humanity. 

IX.  As  to  the  manner  of  acting  lawfully  against  an  enemy, 
it  is  evident  that  violence  and  terror  are  the  proper  characteris- 
tics of  war,  and  the  method  most  commonly  used.  Yet  it  is 
also  lawful  to  employ  stratagem  and  artifice,  provided  it  be  with- 
out treachery,  or  breach  of  promise.  Thus  we  may  deceive 
an  enemy  by  false  news  and  fictitious  relations,   but  we  ought 


192  THE  PRINCIPLES  OF 

never  to  violate  our  compacts  or  engagements  with  him,  as  we 
shall  show  more  particularly  hereafter. 

X.  By  this  we  may  judge  of  the  right  of  stratagems  j  nei- 
ther is  it  to  be  doubted  but  we  may  innocently  use  fraud  and 
artifice,  wherever  it  is  lawful  to  have  recourse  to  violence 
and  force.  The  former  means  have  even  the  advantage  over 
the  latter  in  this,  that  they  are  attended  with  less  mischief,  and 
preserve  the  lives  of  a  great  many  innocent  people. 

XI.  It  is  true  some  nations  have  rejected  the  use  of  strata- 
gem and  deceit  in  war  j  this  however  was  not  because  they 
thought  them  unjust,  but  from  a  certain  magnanimity,  and  of- 
ten from  a  confidence  in  their  own  strength.  The  Romans, 
till  very  near  the  end  of  the  second  Punic  war)  thought  it  a 
point  of  honor  to  use  no  stratagem  against  their  enemies. 

XII.  These  are  the  principles  by  which  we  may  judge  to 
what  degree  the  laws  of  hostility  may  be  carried.  To  which  let 
us  add,  that  most  nations  have  fixed  no  bounds  to  the  rights 
which  the  law  of  nature  gives  us  to  act  against  art  enemy  ;  and 
the  truth  is,  it  is  very  difficult  to  determine  precisely  how  far  it 
is  proper  to  extend  acts  of  hostility  even  in  the  most  legitimate 
wars,  in  defence  of  our  persons,  or  for  the  reparation  of  damag- 
es, or  for  obtaining  caution  for  the  future  ;  especially  as  those, 
who  engage  in  war,  give  each  other,  by  a  kind  of  tacit  agree- 
ment, an  entire  liberty  to  moderate  or  augment  the  violence  of 
arms,  and  to  exercise  all  acts  of  hostility,  as  each  shall  think 
proper. 

XIII.  And  here  it  is  to  be  observed,  that  though  generals 
usually  punish  their  soldiers,  who  have  carried  acts  of  hostility 
beyond  the  orders  prescribed ;  yet  this  is  not  because  they  sup- 
pose the  enemy  is  injured,  but  because  it  is  necessary  the  gene- 
ral's orders  should  be  obeyed,  and  that  military  discipline  should 
be  strictly  observed. 

XIV.  It  is  also  in  consequence  of  these  principles,  that  those 
who,  in  a  just  and  solemn  war, have  pushed  slaughter  and  plun- 
der beyond  what  the  law  of  nature  permits,  are  not  generally 
looked  upon  as  murderers  or  robbers,  nor  punished  as  such.  The 
custom  of  nations  is  to  leave  this  point  to  the  conscience  cS  the 


POLITIC  LAW.  193 

persons  engaged  in  a  war,  rather  than  involve  themselves  in 
troublesome  broils,  by  taking  upon  them  to  condemn  either  party. 

XV.  It  may  be  even  said,  that  this  custom  of  nations  is  found- 
ed on  the  principles  of  the  law  of  nature.  Let  us  suppose,  that, 
in  the  independence  of  the  state  of  nature,  thirty  heads  of  fami- 
lies, inhabitants  of  the  same  country,  should  have  entered  into 
a  league  to  attack  or  repulse  a  body,  composed  of  other  heads  of 
families.  I  say,  that  neither  during  that  war,  nor  after  it  is  fin- 
ished, those  of  the  same  country,  or  elsewhere,  who  had  not 
joined  the  league  on  the  either  side,  ought,  or  could  punish,  as 
murderers  or  robbers,  any  of  the  two  parties,  who  should  happen 
to  fall  into  their  hands. 

XVI.  They  could  not  do  it  during  the  war,  for  that  would 
be  espousing  the  quarrel  of  one  of  the  parties  j  and  since  they 
continued  neuter  in  the  beginning,  they  had  clearly  renounced 
the  right  of  interfering  with  what  should  pass  in  the  war.  Much 
less  could  they  intermeddle  after  the  war  is  over ;  because,  as 
it  could  not  be  ended  without  some  accommodation  or  treaty  of 
peace,  the  parties  concerned  were  reciprocally  discharged  from 
all  the  evils,  they  had  done  to  each  other. 

XVII.  The  good  of  society  also  requires,  that  we  should  fol- 
low these  maxims.  For  if  those,  who  continued  neuter,  had 
stiil  been  authorised  to  take  cognizance  of  the  acts  of  hostility, 
exercised  in  a  foreign  war,  and  consequently  to  punish  such,  as 
they  believed  to  have  committed  any  injustice,  and  to  take  up 
arms  on  that  account ;  instead  of  one  war,  several  might  have 
arisen,  and  proved  a  source  of  broils  and  troubles.  The  more 
wars  became  frequent,  the  more  necessary  it  was,  for  the  tran- 
quillity of  mankind,  not  to  espouse  rashly  other  people's  quar- 
rels. The  establishment  of  civil  societies  only  rendered  the  prac- 
tice of  those  rules  more  necessary ;  because  acts  of  hostility  then 
became,  if  not  more  frequent,  at  least  more  extensive,  and  at- 
tended with  a  greater  number  of  evils. 

XVIII.  Lastly  it  is  to  be  observed,  that  all  acts  of  hostility, 
which  can  be  lawfully  committed  against  an  enemy,  may  be  ex- 
ercised either  in  his  territories,  or  in  ours,  in  places  subject  to  no 
jurisdiction,  or  at  sea. 

XIX.  This  does  not  hold  good  in  a  neutral  country  j  that  is 

Aa 


*94  THE  PRINCIPLES  OF 

to  say,  whose  sovereign  has  taken  no  share  in  the  War.  In  such 
countries,  we  cannot  lawfully  exercise  any  acts  of  hostility ; 
neither  on  the  persons  of  the  enemy,  nor  on  their  effects  ;  not 
in  virtue  of  any  right  of  the  enemy  themselves,  but  from  a  just 
respect  to  the  sovereign,  who,  having  taken  neither  side,  lays  us 
under  a  necessity  of  respecting  his  jurisdiction,  and  of  forbear- 
ing to  commit  any  acts  of  violence  in  his  territories.  To  this 
we  may  add,  that  the  sovereign,  by  continuing  neuter,  has  tacit- 
ly engaged  not  to  surfer  either  party  to  commit  any  hostilities 
within  his  dominions. 

CHAP.  VI. 

Of  the  rights,  tvhich  tuttr  gives  over  the  persons  of  the  enemy,  and 
of  their  extent  and  bounds. 


i.W: 


E  shall  now  enter  into  the  particulars  of  the  differ- 
ent rights,  which  war  gives  over  the  enemy's  person  and  goods  j 
and  to  begin  with  the  former. 

i.  It  is  certain,  that  we  may  lawfully  kill  an  enemy;  I  say 
lawfully,  not  only  according  to  the  terms  of  external  justice, 
which  passes  for  such  among  all  nations*  but  also  according  to 
internal  justice,  and  the  laws  of  conscience.  Indeed  the  end  of 
war  necessarily  requires,  that  we  should  have  this  power,  other- 
wise it  Would  be  in  vain  to  take  up  arms,  and  the  law  of  nature 
would  permit  it  to  no  purpose. 

II.  If  we  consulted  only  the  custom  of  countries,  and  what 
Grotius  calls  the  lata  of  nations,  this  liberty  of  killing  an  enemy 
would  extend  very  far  ;  we  might  say  that  it  had  no  bounds, 
and  might  even  be  exercised  on  innocent  persons.  However, 
though  it  be  certain,  that  war  is  attended  with  numberless  evils, 
which  in  themselves  are  acts  of  injustice,  and  real  cruelty,  but, 
under  particular  circumstances,  ought  rather  to  be  considered  as 
unavoidable  misfortunes  ;  it  is  nevertheless  true,  that  the  right, 
which  war  gives  over  the  person  and  life  of  an  enemy,  has  its 
bounds  •,  and  that  there  are  measures  to  be  observed,  which  can-, 
not  be  innocently  neglected. 

III.  In  general  We  ought  to  be  directed  by  the  principles,  es- 
tablished in  the  preceding  chapter,  in  judging  of  the  degress,  to 


POLITIC  LAW.  195 

which  the  liberties  of  war  may  be  carried.  The  power  we  have 
of  takiqg  away  the  life  of  an  enemy,  is  not  therefore  unlimited  j 
for,  if  we  can  attain  the  legitimate  end  of  war,  that  is,  if  we  can 
defend  our  lives  and  properties,  assert  our  rights,  and  recov* 
er  satisfaction  for  damages  sustained,  and  good  sureties  for  the 
future,  without  taking  away  the  life  of  the  enemy,  it  is  certain 
that  justice  and  humanity  directs  us  to  forbear  it,  and  not  to  shed 
human  blood  unnecessarily. 

IV.  It  is  true,  in  the  application  of  these  rules  to  particular 
cases,  it  is  sometimes  very  difficult,  not  to  say  impossible,  to  fix 
precisely  their  proper  extent  and  bounds;  but  it  is  certain  at 
least,  that  we  ought  to  come  as  near  to  them  as  possible,  with- 
out prejudicing  our  real  interests.  Let  us  apply  these  principles 
to  particular  cases. 

V.  1.  It  is  often  disputed,  whether  the  right  of  killing  an 
enemy  regards  only  those,  who  are  actually  in  arms  ;  or  wheth*- 
er  it  extends  indifferently  to  all  those  in  the  enemy's  country, 
subjects  or  foreigners  ?  My  answer  is,  that  with  respect  to  those, 
who  are  subjects,  the  point  is  incontestable.  These  are  the 
principal  enemies,  and  we  may  exercise  all  aqts  of  hostility 
against  them,  by  virtue  of  the  state  of  war. 

VI.  As  to  strangers,  those,  who  settle  in  the  enemy's  coun- 
try after  a  war  is  begun,  of  which  they  had  previous  notice,  may 
justly  be  looked  upon  as  enemies,  and  treated  as  such.  But  in 
regard  to  such  as  went  thither  before  the  war,  justice  and  hu- 
manity require  that  we  should  give  them  a  reasonable  time  to 
retire ;  and  if  they  neglect  that  opportunity,  they  are  account- 
ed enemies. 

VII.  2.  With  regard  to  old  men,  women,  and  children,  it  is 
certain,  that  the  right  of  war  does  not  of  itself  require,  that  we 
should  push  hostilities  so  far,  as  to  kill  them  ;  it  is  therefore  a 
barbarous  cruelty  to  do  so.  I  say,  that  the  end  of  war  does 
not  require  this  of  itself;  but  if  women  for  instance  exercise 
acts  of  hostility,  if,  forgetting  the  weakness  of  their  sex,  they 
usurp  the  offices  of  men,  and  take  up  arms  against  us,  then  we 
are  certainly  excused  in  availing  ourselves  of  the  rights  of  war 
against  them.  It  may  also  be  said,  that  when  the  heat  of  ac- 
tion hurries  the  soldiers,  as  it  were  in  spite  of  themselves,  and 


ig6  THE  PRINCIPLES  OF 

against  the  order  of  their  superiors,  to  commit  acts  of  inhu- 
manity, as,  for  example,  at  the  siege  of  a  town,  which,  by  an  ob- 
stinate resistance,  has  irritated  the  troops ;  we  ought  to  look 
upon  those  evils  rather  as  misfortunes,  and  the  unavoidable 
consequences  of  war,  than  as  crimes,  that  deserve  to  be  pun- 
ished. 

VIII.  3.  We  must  reason  almost  in  the  same  manner,  with 
respect  to  prisoners  of  war.  We  cannot,  generally  speaking, 
put  them  to  death,  without  being  guilty  of  cruelty.  I  say 
generally  speaking  j  for  there  may  be  cases  of  necessity  so 
pressing,  that  the  care  of  our  own  preservation  obliges  us  to 
proceed  to  extremities,  which  in  any  other  circumstances  would 
be  absolutely  criminal. 

IX.  In  general  even  the  laws  of  war  require,  that  we  should 
abstain  from  slaughter  as  much  as  possible,  and  not  shed  human 
blood  without  necessity.  We  ought  not  therefore  directly  and 
deliberately  to  kill  prisoners  of  war,  nor  those,  who  ask  quarter, 
or  surrender  themselves,  much  less  old  men,  women,  and  chil- 
dren j  in  general  we  should  spare  all  those,  whose  age  and 
profession  render  them  unfit  to  carry  arms,  and  who  have  no 
other  share  in  the  war,  than  being  in  the  enemy's  country. 
It  is  easy  also  to  conceive,  that  the  rights  of  war  do  not  extend 
so  far,  as  to  authorise  the  outrages,  committed  upon  the  honor 
and  chastity  of  women  ;  for  this  contributes  nothing  either  to 
our  defence  or  safety,  or  to  the  support  of  our  rights  ;  but  on- 
ly serves  to  satisfy  the  brutality  of  the  soldiers.* 

X.  Again  a  question  is  here  started,  whether  in  cases,  where 
it  is  lawful  to  kill  the  enemy,  we  may  not,  for  that  purpose,  use 
all  kinds  of  means  indifferently  ?  I  answer,  that  to  consider  the 
thing  in  itself,  and  in  an  abstract  manner,  it  is  no  matter  which 
way  we  kill  an  enemy,  whether  by  open  force,  or  by  fraud  and 
stratagem  j  by  the  sword  or  by  poison. 

XI.  It  is  however  certain,  that  according  to  the  idea  and  cus- 
tom of  civilized  nations,  it  is  looked  upon  as  a  base  act  of  cowar- 
dice, not  only  to  cause  any  poisonous  draught  to  be  given  to  the 
enemy,  but  also  to  poison  wells,  fountains,  springs,  rivers,  ar- 
rows, darts,  bullets,  or  other  weapons  used  against  him.  Now 
it  is  sufficient,  that  this  custom  of  looking  on  the  use  of  poisoa 

•  Grotiu*,  Jib-  iii.  cap.  iv.  sect.  19. 


POLITIC  LAW.  197 

as  criminal  is  received  among  the  nations  at  variance  with  us,  to 
suppose  we  comply  with  it,  when,  in  the  beginning  of  the  war,  we 
do  not  declare,  that  we  are  at  liberty  to  act  otherwise,  and  leave 
it  to  our  enemy's  option  to  do  the  same. 

XII.  We  may  so  much  the  more  suppose  this  tacit  agreement, 
as  humanity  and  the  interest  of  both  parties  equally  require  it ; 
especially  since  wars  are  become  so  frequent,  and,are  often  un- 
dertaken on  such  slight  occasions ;  and  since  the  human  mind, 
ingenious  in  inventing  the  means  to  hurt,  has  so  greatly  multi- 
plied those,  which  are  authorized  by  custom,  and  looked  upon 
as  honest.  Besides  it  is  beyond  all  doubt,  that,  when  we  can 
obtain  the  same  end  by  milder  and  more  humane  measures, 
which  preserve  the  lives  of  many,  and  particularly  of  those,  in 
whose  preservation  human  society  is  interested,  humanity  di- 
rects, that  we  should  take  this  course. 

XIII.  These  are  therefore  just  precautions,  which  men 
ought  to  follow  for  their  own  advantage.  It  is  for  the  com- 
mon benefit  of  mankind,  that  dangers  should  not  be  augment- 
ed without  end.  In  particular  the  public  is  interested  in  the 
preservation  of  the  lives  of  kings,  generals  of  armies,  and  other 
persons  of  the  first  rank,  on  whose  safety  that  of  societies  gen- 
erally depends.  For  if  the  lives  of  these  persons  are  in  greater 
safety,  than  those  of  others,  when  attacked  only  by  arms  ;  they 
are,  on  the  other  hand,  more  in  danger  of  poison,  &c.  and  they 
would  be  every  day  exposed  to  perish  in  this  manner,  if  they 
were  not  protected  by  a  regard  to  some  sort  of  law,  or  estab- 
lished custom. 

XIV.  Let  us  add  in  fine,  that  all  nations,  that  ever  pretend- 
ed to  justice  and  generosity,  have  followed  these  maxims.  The 
Roman  consuls,  in  a  letter  they  wrote  to  Pyrrhus,  informing 
him,  that  one  of  his  people  had  offered  to  poison  him,  said,  that 
it  was  the  interest  of  all  nations  not  to  set  such  examples. 

XV.  It  is  likewise  disputed,  whether  we  may  lawfully  send 
a  person  to  assassinate  an  enemy  ?  I  answer,  1.  that  he,  who 
for  this  purpose  employs  only  some  of  his  own  people,  may  do 
it  justly.  When  it  is  lawful  to  kill  an  enemy,  it  is  no  matter 
whether  those  employed  are  many  or  few  in  number.  Six  hun- 
dred Lacedaemonians,  with  Leonidas,  entered  the  enemy's  camp, 


19S  THE  PRINCIPLES  OF 

and  went  directly  to  the  Persian  king  (Xerxes's)  pavilion  ;  and 
a  smaller  number  might  certainly  have  done  the  same.  The 
famous  attempt  of  Mucius  Scevola  is  commended  by  all  anti- 
quity ;  and  Porsenna  himself,  whose  life  was  aimed  at,  ac- 
knowledged this  to  be  an  act  of   great  valor* 

XVI.  But  it  is  not  so  easy  to  determine  whether  we  may 
for  this  purpose  employ  assassins,  who,  by  undertaking  this  task, 
must  be  guilty  of  falshood  and  treason  •>  such  as  subjects  with 
regard  to  their  sovereign,  and  soldiers  to  their  general.  In  this 
respect  there  are,  in  my  opinion,  two  points  to  be  distinguished. 
First  whether  we  do  any  wrong,  even  to  the  enemy  himself, 
against  whom  we  employ  traitors  5  and  secondly  whether,  sup- 
posing we  do  him  no  wrong,  we  commit  nevertheless  a  bad 
action. 

XVII.  3.  "With  regard  to  the  first  question,  to  consider  the 
thing  itself,  and  according  to  the  rigorous  law  of  war,  it  seems, 
that,  admitting  the  war  to  be  just,  no  wrong  is  done  to  the  ene- 
my, whether  we  take  advantage  of  the  opportunity  of  a  traitor, 
who  freely  offers  himself,  or  whether  we  seek  for  it,  and  bring 
it  about  ourselves. 

XVIII.  The  state  of  war,  into  v.liich  the  enemy  has  put 
himself,  and  which  it  was  in  his  own  power  to  prevent,  permits 
of  itself  every  method,  that  can  be  used  against  him  ;  so  that 
he  has  no  reason  to  complain,  whatever  we  do.  Besides,  we 
are  no  more  obliged,  strictly  speaking,  to  respect  the  right  he 
has  over  his  subjects,  and  the  fidelity  they  owe  him  as  such, 
than  their  lives  and  fortunes,  of  which  we  may  certainly  de- 
prive them  by  the  right  of  war. 

XIX.  4.  And  yet  I  believe,  that  this  is  not  sufficient  to  ren- 
der an  assassination,  under  such  circumstances,  entirely  innocent. 
A  sovereign,  who  has  the  least  tenderness  of  conscience,  and  is 
convinced  of  the  justice  of  his  cause*  will  not  endeavour  to  find 
out  perfidious  methods  to  subdue  his  enemy,  nor  be  so  ready 
to  embrace  those,  which  may  present  themselves  to  him.  The 
just  confidence  he  has  in  the  protection  of  heaven,  the  horror  he 
conceives  at  the  traitor's  perfidy,  the  dread  of  becoming  his  ac- 
complice, and  of  setting  an  example,  which  may  fall  again  on 
fojmself  and  others,  will  make  him  despise  and  reject  all  the  ad- 
vantage, he  might  propose  to  himself  from  such  means. 


POLITIC  LAW.  199 

AX.  5.  Let  us  also  add,  that  such  means  cannot  always  be 
looked  upon  as  entirely  innocent,  even  with  respect  to  the  per- 
son, who  employs  the  assassin.  The  state  of  hostility,  which 
supersedes  the  intercourse  of  good  offices,  and  authorizes  to 
hurt,  does  not  therefore  dissolve  all  ties  of  humanity,  nor  remove 
©ur  obligation  to  avoid,  as  much  as  possible,  the  giving  room 
for  some  bad  actions  of  the  enemy,  or  his  people ;  especially 
those,  who  Of  themselves  have  had  no  part  in  the  occasion  of 
the  war.  Now  every  traitor  certainly  commits  an  action  equal- 
ly shameful  and  criminal. 

XXI.  6.  "We  must 'therefore  conclude  with  Grotius,  that  w<2 
can  neVef  in  conscience  seduce  or  solicit  the  subjects  of  an  en- 
emy to  commit  treason,  because  that  is  positively  and  directly 
inducing  them  to  perpetrate  a  henious  crime,  which  otherwise 
would,  in  all  probability,  have  been  very  remote  from  their 
thoughts. 

XXII.  7.  It  is  quite  another  thing,  when  we  only  take  ad- 
vantage of  the  occasion  and  the  dispositions,  we  find  in  a  per- 
son, who  has  no  need  to  be  solicited  to  commit  treason.  Here  I 
think  the  infamy  of  the  perfidy  does  not  fall  on  him,  who  finds 
it  entirely  formed  in  the  heart  of  the  traitor ;  especially  if  we 
consider,  that,  in  this  case  between  enemies,  the  thing,  with 
respect  to  which  we  take  advantage  of  the  bad  disposition  of 
another,  is  of  such  a  nature,  that  we  may  innocently  and  law- 
fully do  it  ourselves. 

XXIII.  8.  Be  that  as  it  may,  for  the  reasons  above  alledged* 
we  ought  not  to  take  advantage  of  a  treason,  which  Offered  it- 
self, except  in  an  extraordinary  case,  and  from  a  kind  of  neces- 
sity. And  though  the  custom  of  several  nations  has  nothing 
obligatory  in  itself,  yet  as  the  people,  with  whom  we  are  at  va- 
riance, look  upon  the  very  acceptance  of  a  certain  kind  of  per* 
fidy  to  be  unlawful,  as  that  of  assassinating  one's  prince  or  gene* 
ral,  we  are  reasonably  supposed  to  comply  with  it  by  a  tacit  con- 
sent. 

XXIV.  9.  Let  us  observe  however,  that  the  law  of  nations 
allows  some  difference  between  a  fair  and  legitimate  enemy,  and 
rebels,  pirates,  or  highwaymen.  The  most  religious  princes 
make  no  difficulty  to  propose  even  rewards  to  those,  who  will 


200  THE  PRINCIPLES  OF 

betray  such  persons  ;  and  the  public  odium  of  all,  which  men 
of  this  stamp  lie  under,  is  the  cause,  that  nobody  thinks  the 
measure  hard,  or  blames  the  conduct  of  the  prince  in  using  eve- 
ry method  to  destroy  them. 

XXV.  Lastly  it  is  permitted  to  kill  an  enemy  wherever  we 
find  him,  except  in  a  neutral  country ;  for  violent  means  are  not 
suffered  in  a  civilized  society,  where  we  ought  to  implore  the 
assistance  of  the  magistrate.  In  the  time  of  the  second  Punic 
•war*  seven  Carthaginian  galleys  rode  in  a  harbor,  belonging  to 
Syphax,  who  was  then  in  peace  both  with  the  Romans  and  Car- 
thaginians, and  Scipio  came  that  way  with  two  galleys  only. 
The  Carthaginians  immediately  prepared  to  attack  the  Roman 
galleys,  which  they  might  easily  have  taken  before  they  had  en- 
tered the  port ;  but,  being  forced  by  a  strong  wind  into  the  har- 
bor, before  the  Carthaginians  had  time  to  weigh  anchor,  they 
durst  not  attack  them,  because  it  was  in  a  neutral  prince's  ha- 
ven. 

XXVI.  Here  it  may  be  proper  to  say  something  concerning 
prisoners  of  war.  In  former  times  it  was  a  custom,  almost  uni- 
versally established,  that  those,  who  were  made  prisoners  in  a 
just  and  solemn  war,  whether  they  had  surrendered  themselves, 
or  been  taken  by  main  force,  became  slaves  the  moment  they 
were  conducted  into  some  place,  dependant  on  the  conqueror. 
And  this  right  was  exercised  on  all  persons  whatsoever,  even 
on  those,  who  happened  unfortunately  to  be  in  the  enemy's 
country,  at  the  time  the  war  suddenly  broke  out. 

XXVII.  Further,  not  only  the  prisoners  themselves,  but 
their  posterity  were  reduced  to  the  same  condition  ;  that  is  to 
say,  those  born  of  a  woman  after  she  had  been  made  a  slave. 

XXVIII.  The  effects  of  such  a  slavery  had  no  bounds  ;  ev- 
ery thing  was  permitted  to  a  master  with  respect  to  his  slave, 
he  had  the  power  of  life  and  death  over  him,  and  all,  that  the 
slave  possessed,  or  could  afterwards  acquire,  belonged  of  right 
to  the  master. 

XXIX.  There  is  some  probability,  that  the  reason  and  end, 
for  which  nations  had  established  this  custom  of  making  slaves 
in  war,  was  principally  to  induce  the  captors  to   abstain  from 

*  Liry,  lib.  xicviii.  cap.  svii.  numb.   x%,  &  se<j. 


POLITIC  LAW.  201 

from  slaughter,  from  a  view  of  the  advantages  they  reaped 
from  their  slaves.  Thus  historians  observe,  that  civil  wars  were 
more  cruel  than  others,  the  general  practice  in  that  case  being 
to  put  the  prisoners  to  the  sword,  because  they  could  not  make 
slaves  of  them. 

XXX.  But  Christian  nations  have  generally  agreed  among 
themselves  to  abolish  the  custom  of  making  their  prisoners  yield 
perpetual  service  to  the  conqueror.  At  present  it  is  thought 
sufficient  to  keep  those,  that  are  taken  in  war,  till  their  ransom 
is  paid,  the  estimation  of  which  depends  on  the  will  of  the  con- 
queror, unless  there  be  a  cartel,  or  agreement,  by  which  it  is 
fixed. 

CHAP.  VII. 

Of  the  rights  of  war  over  the  goods  of  an  enemy. 

I.  JTJl-S  to  the  goods  of  an  enemy,  it  is  certain  that  tho 
state  of  war  permits  us  to  carry  them  off,  to  ravage,  to  spoil,  or 
even  entirely  to  destroy  them  *,  for,  as  Cicero  very  well  ob- 
serves,* It  is  not  contrary  to  the  law  of  nature  to  plunder  a  person^ 
tohom  we  may  lawfully  kill.  And  all  those  mischiefs,  which  the 
law  of  nations  allows  us  to  do  to  the  enemy,  by  ravaging  and 
wasting  his  lands  and  goods,  are  called  spoil  or  plunder. 

II.  This  right  of  spoil,  or  plunder,  extends  in  general  to  all 
things  belonging  to  the  enemy  ;  and  the  law  of  nations,  prop- 
erly so  called,  does  not  exempt  even  sacred  things  ,•  that  is, 
things  consecrated  either  to  the  true  God,  or  to  false  deities,  and 
designed  for  the  use  of  religion. 

III.  It  is  true  the  practices  and  customs  of  nations  do  not 
agree  in  this  respect ;  some  having  permitted  the  plunder  of 
things  sacred  and  religious,  and  others  having  looked  upon  it  as 
a  profanation.  But  whatever  the  customs  of  different  people 
may  be,  they  can  never  constitute  the  primitive  rule  of  right. 
In  order  therefore  to  be  assured  of  the  right  of  war  in  regard  to 
this  article,  we  must  have  recourse  to  the  law  of  nature  and  na- 
tions. 

•  Cic.  de  Off.  lib.  iii.  cap.  vi. 

Bb 


202  THE  PRINCIPLES  OF 

IV.  I  observe  then,  that  things  sacred  are  not  in  themselves 
different  from  those  we  call  profane.  The  former  differ  from 
the  latter  only  by  the  religious  use,  to  which  they  were  intend- 
ed. But  this  application  or  use  does  not  invest  the  things  with 
die  quality  of  holy  and  sacred,  as  an  intrinsic  and  indelible  char- 
acter. 

V.  The  things  thus  consecrated  still  belong  either  to  the 
state,  or  to  the  sovereign  ;  and  there  is  no  reason  why  the  prince, 
who  has  devoted  them  to  religious  purposes,  may  not  afterwards 
apply  them  to  the  uses  of  life  ;  for  they,  as  well  as  all  other 
public  matters,  are  at  his  disposal. 

VI.  It  is  therefore  a  gross  superstition  to  believe,  that  by  the 
consecration,  or  destination  of  those  things  to  the  service  of  God, 
they  change  master,  and  belong  no  more  to  men,  but  are  entire- 
ly withdrawn  from  human  commerce,  and  the  property  of  them 
is  transferred  to  God.  This  is  a  dangerous  superstition,  owing 
to  the  ambition  of  the  clergy. 

VII.  We  must  therefore  consider  sacred  things  as  public 
goods,  which  belong  to  the  state  or  sovereign.  All  the  liberty, 
which  the  right  of  war  gives  over  the  goods  belonging  to  the 
state,  it  also  gives  with  respect  to  things  called  sacred.  They 
may  therefore  be  spoiled  or  wasted  by  the  enemy,  at  least  so  far 
as  is  necessary  and  conducive  to  the  design  of  the  war  ;  a  limi- 
tation not  at  all  peculiar  to  the  plunder  of  sacred  or  religious 
things. 

VIII.  For,  in  general,  it  certainly  is  not  lawful  to  plunder 
for  plunder's  sake,  but  it  is  just  and  innocent  only,  when  it  bears 
some  relation  to  the  design  of  the  war  ;  that  is,  when  an  advan- 
tage directly  accrues  from  it  to  ourselves,  by  appropriating  those 
goods,  or  at  feast,  when  by  ravaging  and  destroying  them,  we  in 
some  measure  weaken  the  enemy.  It  would  be  a  madness 
equally  brutal  and  criminal  to  do  evil  to  another  without  a  pros- 
pect of  procuring  some  good,  either  directly  or  indirectly,  to  our- 
selves. It  very  seldom  happens  for  instance,  that  after  the  tak- 
ing of  towns,  there  is  any  necessity  for  ruining  temples,  statues, 
or  other  public  or  private  structures ;  we  should  therefore  gene- 
rally spare  all  these,  as  well  as  the  tombs  and  sepulchres. 

IX.  It  may  however  be  observed,  with  respect  to  things  sac~ 


POLITIC  LAW.  203 

red,  that  they  who  believe  they  contain  something  divine  and  in- 
violable, are  really  in  the  wrong  to  meddle  with  them  at  all  \ 
but  this  is  only  because  they  would  then  act  against  their  con- 
science. And  here,  by  the  way,  we  may  take  notice  of  a  rea- 
son, given  to  clear  the  Pagans  of  the  imputation  of  sacrilege,  even 
when  they  pillaged  the  temples  of  the  gods,  whom  they  ac- 
knowledged as  such  •,  which  is,  they  imagined,  that,  when  a 
city  was  taken,  the  guardian  deities  of  that  place  quitted,  at  the 
same  time,  their  temples  and  altars  }  especially  after  those  dei- 
ties, with  every  thing  else,  that  was  sacred,  had  been  invited  out 
with  certain  ceremonies.  This  is  excellently  described  by  Coc- 
ceius,  in  his  dissertation  De  Evocatione  Sacrorum. 

X.  The  learned  Grotius  furnishes  us  with  wise  reflections  on 
this  subject,  to  persuade  generals  to  behave  with  moderation  in 
regard  to  plunder,  from  the  advantages,  which  may  accrue  to 
themselves  from  such  a  conduct.  And  first  he  says,  "  by  these 
"  means  we  take  from  the  enemy  one  of  the  most  powerful 
"  weapons,  despair.  Besides,  by  sparing  the  enemy's  country, 
"  we  give  room  to  believe,  that  we  are  pretty  confident  of  vic- 
M  tory  j  and  clemency  is  of  itself  proper  to  soften  and  engage 
"  the  minds  of  men.  All  which  may  be  proved  by  several 
*'  illustrious  examples." 

XI.  Besides  the  power,  which  war  gives  to  spoil  and  destroy 
the  goods  of  an  enemy,  it  likewise  confers  a  right  of  acquiring, 
appropriating,  and  justly  retaining  the  goods,  we  have  taken 
from  him,  till  the  sum  due  to  us  is  paid,  including  the  expen- 
ces  of  the  war,  in  which  his  refusal  of  payment  engaged  us  5 
and  whatever  else  we  think  necessary  to  secure  to  ourselves,  by 
way  of   caution,  from  the  enemy. 

XII.  By  the  law  of  nations,  not  only  he,  who  makes  war  for 
a  just  reason,  but  also  every  man,  in  a  just  war,  acquires  a  prop- 
erty in  what  he  takes  from  the  enemy,  and  that  without  rule  or 
measure,  at  least  as  to  the  external  effects,  with  which  the  right 
of  property  is  accompanied  ;  that  is  to  say,  neutral  nations 
ought  to  regard  the  two  parties  at  war,  as  lawful  proprietors  of 
what  they  can  take  from  each  other  by  force  of  arms  ;  the 
state  of  neutrality  not  permitting  them  to  espouse  either  side, 
or  to  treat  either  of  the  contending  powers  m  an  usurper,  .pur- 
suant to  the  principles  already  established. 


204  THE  PRINCIPLES  OF 

XIII.  This  is  generally  true,  as  well  with  respect  to  move- 
ables, as  immoveables,  so  long  as  they  are  in  the  possession  of 
him,  who  has  acquired  them  by  the  right  of  war.  But  if 
from  the  hands  of  the  conqueror  they  have  passed  into  the 
power  of  a  third,  there  is  no  reason,  if  they  are  immoveables, 
why  the  ancient  owner  should  not  try  to  recover  them  from 
that  third,  who  holds  them  of  the  enemy,  by  what  title  soever  ; 
for  he  has  as  good  a  right  against  the  new  possessor,  as  against 
the  enemy  himself. 

XIV.  I  said,  if  they  are  immoveables  ;  for  with  respect  to 
moveable  effects,  as  they  may  easily  be  transferred  by  commerce 
into  the  hands  of  the  subjects  of  a  neutral  state,  often  without 
their  knowing  that  they  were  taken  in  war ;  the  tranquillity  of 
nations,  the  good  of  commerce,  and  even  the  state  of  neutrali- 
ty require,  that  they  should  ever  be  reputed  lawful  prize,  and 
the  property  of  the  person,  of  whom  we  hold  them.  But  the 
case  is  otherwise  with  respect  to  immoveables,  they  are  such  in 
their  own  nature  j  and  those  to  whom  a  state,  which  has  taken 
them  from  an  enemy,  would  resign  them,  cannot  be  ignorant  of 
the  manner,  in  which  it  possesses  them. 

XV.  Here  a  question  arises,  when  is  it  that  things  are  said 
to  be  taken  by  the  right  of  war,  and  justly  deemed  to  belong  to 
him,  v/ho  is  in  possession  of  them  ?  Grotius  answers  as  a 
civilian,  that  a  man  is  deemed  to  have  taken  moveable  things 
by  the  right  of  war  so  soon,  as  they  are  secured  from  the  pur- 
suit of  the  enemy  ;  or  when  he  has  made  himself  master  of 
them  in  such  a  manner,  that  the  first  owner  has  lost  all  proba- 
ble hopes  of  recovering  them.  Thus  says  he,  at  sea  ships  and 
other  things  are  not  said  to  be  taken,  till  they  are  brought  into 
some  port  or  harbour  belonging  to  us,  or  to  some  part  of  the 
sea,  where  our  fleet  rides ;  for  it  is  only  then,  that  the  enemy 
begins  to  despair  of  recovering  his  property. 

XVI.  But,  in  my  opinion,  this  manner  of  answering  the 
question  is  altogether  arbitrary.  I  see  no  reason  why  the  priz- 
es, taken  from  the  enemy,  should  not  become  our  property  so 
soon,  as  they  are  taken.  For  when  two  nations  are  at  war, 
both  of  them  have  aU  the  requisites  for  the  acquisition  of  prop- 
erty, at  the  very  moment,  they  take  a  prize.      They  have  an  in- 


POLITIC  LAW.  205 

tentiort  to  acquire  a  title  of  just  property,  namely  the  right  of 
war ;  and  they  are  actually  in  possession  of  the  thing.  But  if 
the  principle,  which  Grotius  supposes,  were  to  be  allowed,  and 
the  prizes  taken  from  the  enemy  were  not  deemed  a  lawful  ac- 
quisition, till  they  are  transported  to  a  place  of  safety,  it  would 
follow,  that  the  booty,  which  a  small  number  of  soldiers  has 
taken  in  war,  may  be  retaken  from  them  by  a  stronger  body  of 
troops  of  the  same  party,  as  still  belonging  to  the  enemy,  if  this 
stronger  body  of  troops  has  attacked  the  other  before  they  had 
conveyed  their  booty  to  a  place  of  safety. 

XVII.  The  latter  circumstance  is  therefore  altogether  indif- 
ferent with  respect  to  the  present  question.  The  greater  or 
less  difficulty  the  enemy  may  find,  in  recovering  what  has  been 
taken  from  him,  does  not  hinder  the  capture  from  actually  be- 
longing to  the  conqueror.  Every  enemy,  as  such,  and  so  long 
as  he  continues  such,  retains  the  will  to  recover  what  the  oth- 
er has  taken  from  him  ;  and  his  present  inability  only  reduces 
him  to  the  necessity  of  waiting  for  a  more  favourable  opportu- 
nity, which  he  still  seeks  and  desires.  Hence,  with  respect  to 
him,  the  thing  ought  no  more  to  be  deemed  taken,  when  in  a 
place  of  safety,  than  when  he  is  still  in  a  condition  of  pursuing 
it.  All,  that  can  be  said,  is,  that  in  the  latter  case,  the  posses- 
sion of  the  conqueror  is  not  so  secure  as  in  the  former.  The 
truth  is,  this  distinction  has  been  invented  only  to  establish  the 
rules  of  the  right  of  postliminy,  or  the  manner,  in  which  the  sub- 
jects of  the  state,  from  whom  something  has  been  taking  in  war, 
reenter  upon  their  rights ;  rather  than  to  determine  the  time  of 
the  acquisition  of  things,  taken  by  one  enemy  from  another. 

XVIII.  This  seems  to  be  the  determination  of  the  law  of 
nature  in  regard  to  this  point.  Grotius  observes  also,  that,  by 
the  customs  established  in  his  time,  it  is  sufficient,  that  the  prize 
has  been  twenty  four  hours  in  the  enemy's  possession,  to  ac- 
count it  lost.  Thuanus,  in  the  year  1595,  gives  us  an  example, 
that  this  custom  was  observed  also  by  land.  The  town  of  Liere 
in  Brabant  having  been  taken  and  retaken  the  same  day,  the  plun- 
der was  returned  to  the  inhabitants,  because  it  had  not  been 
twenty  four  hours  in  the  hands  of  the  enemy.  But  this  rule  was 
afterwards  changed,  with  respect  to  the  United  Provinces »  and 


2o5  THE  PRINCIPLES  OF 

in  general  we  may  observe,  that  every  sovereign  has  a  right  to 
establish  such  rules,  in  regard  to  this  point,  as  he  thinks  proper, 
and  to  make  what  agreement  he  pleases  with  other  powers. 
There  have  been  several  made  at  different  times,  between  the 
Dutch  and  Spaniards,  the  Portuguese  and  the  northern  states. 

XIX.  Grotius  applies  these  principles  also  to  lands;  they  are 
not  to  be  reputed  lost  so  soon,  as  they  are  seized  on ',  but  for 
this  effect  they  are  to  be  secured  with  fortifications,  that,  with- 
out being  forced,  they  cannot  be  repossessed  by  the  first  owner. 
But  to  this  case  we  may  also  apply  the  reflections  already  made. 
A  territory  belongs  to  an  enemy  as  soon,  as  he  is  master  of  it ; 
and  so  long,  as  he  continues  in  possession  of  it.  The  greater  or 
less  precaution  to  secure  it,  is  nothing  to  the  purpose. 

XX.  But  be  this  as  it  may,  it  is  to  be  observed,  that,  during 
the  whole  time  of  the  war,  the  right  we  acquire  over  the  things 
we  have  taken  from  the  enemy,  is  of  force  only  with  respect  to 
a  third  disinterested  party  ;  for  the  enemy  himself  may  retake 
what  he  has  lost,  whenever  he  finds  an  opportunity,  till  by  a 
treaty  of  peace  he  has  renounced  all  his  pretensions. 

XXI.  It  is  also  certain,  that  in  order  to  appropriate  a  thing 
by  the  right  of  war,  it  must  belong  to  the  enemy  •,  for  things 
belonging  to  people,  who  are  neither  his  subjects,  nor  animated 
with  the  same  spirit  as  he  against  us,  cannot  be  taken  by  the 
right  of  war,  even  though  they  are  found  in  the  enemy's  country. 
But  if  neutral  strangers  furnish  our  enemy  with  any  thing,  and 
that  with  a  design  to  put  him  into  a  condition  of  hurting  us,  they 
may  be  looked  upon  as  taking  part  with  our  foe,  and  their  effects 
may  consequently  be  taken  by  the  right  of  war. 

XXII.  It  is  however  to  be  observed,  that  in  dubious  cases  it 
is  always  to  be  presumed,  that  what  we  find  in  the  enemy's 
country,  or  in  their  ships,  is  deemed  to  belong  to  them  •,  for  be- 
sides that  this  presumption  is  very  natural,  were  the  contrary 
maxim  to  take  place,  it  would  lay  a  foundation  for  an  infinite 
number  of  frauds.  But  this  presumption  however  reasonable  in 
itself,  may  be  destroyed  by  contrary  proofs. 

XXI II.  Neither  do  the  ships  of  friends  become  lawful  prizes, 
though  some  of  the  enemy's  effects  are  found  in  them,  unless  it 
is  done  by  the  consent  of  the  ownejs  ;  who  by  that  step  seem 


POLITIC  LAV/.  207 

to  violate  the  neutrality,  or  friendship,  and  give  us  a  just  right  tc 
treat  them  as  an  enemy. 

XXIV.  But  in  general  we  must  observe,  with  respect  to  all 
these  questions,  that  prudence  and  good  policy  require,  that 
sovereigns  should  come  to  some  agreement  among  themselves, 
in  order  to  avoid  the  disputes,  which  may  arise  from  those  differ- 
ent cases, 

XXV.  Let  us  also  take  notice  of  a  consequence  of  the  princi- 
ples here  established  ;  which  is,  that  when  we  have  taken  things 
from  the  enemy,  of  which  he  had  stripped  another  by  the  right 
of  war,  the  former  possessor  cannot  claim  them. 

XXVI.  Another  question  is,  whether  things,  taken  in  a  pub- 
lic and  solemn  war,  belong  to  the  state,  or  to  the  individuals,  who 
are  members  of  it,  or  to  those,  who  made  the  first  seizure  ?  I 
answer,  that,  as  the  right  of  war  is  lodged  in  the  sovereign  alone, 
and  undertaken  by  his  authority,  every  thing  taken  is  originally 
and  primarily  acquired  to  him,  whatever  hands  it  first  falls  into. 

XXVII.  However,  as  the  war  is  burdensome  to  the  subjects, 
both  equity  and  humanity  require,  that  the  sovereign  should 
make  them  partake  of  the  advantages,  which  may  accrue  from  it. 
This  may  be  done  either  by  assigning  to  those,  who  may  take 
the  field,  a  certain  pay  from  the  public,  or  by  sharing  the  booty 
among  them.  As  to  foreign  troops,  the  prince  is  obliged  to  give 
them  no  more  than  their  pay  ;  what  he  allows  them  above  that, 
is  pure  liberality. 

XXVIII.  Grotius,  who  examines  this  question  at  large,  dis- 
tinguishes between  acts  of  hostility  truly  public,  and  private 
acts  that  are  done  upon  the  occasion  of  a  public  war.  By  the 
latter,  according  to  him,  private  persons  acquire  to  themselves 
principally,  and  directly,  what  they  take  from  the  enemy  ;  where- 
as by  the  former,  every  thing  taken  belongs  to  the  whole  body 
of  the  people,  or  to  the  sovereign.  But  this  decision  has  been 
justly  criticised.  As  all  public  war  is  made  by  the  authority 
of  the  people,  or  of  their  chief,  it  is  from  this  source  we  must  orig- 
inally derive  whatever  right  individuals  may  have  to  things  taken 
in  war.  In  this  case  there  must  always  be  an  express  or  tacit 
consent  of  the  sovereign. 

XXIX.  It  is  also  to  be  observed,  that  in  treating  this  point 


2oS  THE  PRINCIPLES  OF 

Grotius  has  confounded  different  things.  The  question  does  not 
relate  to  the  law  of  nations,  properly  so  called  j  for  in  whatev- 
er manner  that  law  is  understood,  and  whatever  it  be  founded 
on,  it  ought  to  relate  to  the  affairs  in  dispute  between  two  differ- 
ent states.  Now  whether  the  booty  belongs  to  the  sovereign 
who  makes  war,  or  to  the  generals,  or  to  the  soldiers,  or  to  oth- 
er persons,  that  is  nothing  to  the  enemy,  nor  to  other  states.  If 
what  is  taken  be  a  good  prize,  it  is  of  small  consequence  to 
the  enemy,  in  whose,  hands  it  remains.  With  regard  to  neutral 
people,  it  is  sufficient  that  such  of  them,  as  have  purchased,  or 
any  other  way  acquired  a  movable  thing  taken  in  war,  cannot 
be  molested,  or  prosecuted  upon  that  account.  The  truth  is, 
the  regulations  and  customs,  relating  to  this  subject  are  not  of 
public  right  •,  and  their  conformity,  in  many  countries,  im- 
plies no  more  than  a  civil  right,  common  to  several  nations  sep- 
arately. 

XXX.  As  for  what  in  particular  relates  to  the  acquisition  of 
incorporeal  things  by  the  right  of  war,  it  is  to  be  observed,  that 
they  do  not  become  our  property,  except  we  are  in  possession  of 
the  subject,  in  which  they  inhere.  Now  the  subjects,  they  inhere 
in,  are  either  things  or  persons.  We  often  annex,  for  instance, 
to  certain  lands,  rivers,  ports,  and  towns,  particular  rights,  which 
always  follow  them,  whatever  possessors  they  come  to  ;  or  rath- 
er those,  who  possess  them,  are  thereby  invested  with  certain 
rights  over  other  things  and  persons. 

XXXI.  The  rights,  which  belong  directly  and  immediately  to 
persons,  regard  either  other  persons,  or  only  certain  things. 
Those,  which  are  annexed  to  persons  over  other  persons,  are 
not  obtained  but  with  the  consent  of  the  persons  themselves  ; 
who  are  supposed  not  to  have  given  a  power  over  them  to 
any  man  promiscuously,  but  to  some  certain  person.  Thus,  for 
instance,  though  a  king  happens  to  be  made  a  prisoner  of  war, 
his  enemies  have  not  therefore  acquired  his  kingdom  with  him. 

XXXII.  But  with  respect  to  personal  rights  over  things,  the 
bare  seizure  of  the  person  of  the  enemy  is  not  a  sufficient  title 
to  the  property  of  all  his  effects,  unless  we  really  take  possession 
of  those  effects  at  the  same  time.  This  may  be  illustrated  by 
the  example  given  by  Grotius  and  Puffendorf,      Alexander  the 


POLITIC  LAW.  209 

Great,  having  destroyed  the  city  of  Thebes,  made  a  present  to 
the  Thessalonians  of  an  instrument,  in  which  the  latter  acknowl- 
edged that  they  owed  the  Thebans  a  hundred  talents. 

XXXIII.  These  are  the  rights,  which  war  gives  us  over  the 
effects  of  the  enemy.  But  Grotius  pretends,  that  the  right, 
by  which  we  acquire  things  taken  in  war,  is  so  proper  and  pe- 
culiar to  a  solemn  war,  declared  in  form,  that  it  has  no  force  in 
others,  as  in  civil  war3,  &c.  and  that  in  the  latter,  in  particular, 
there  is  no  change  of  property,  but  in  virtue  of  the  sentence 
of  a  judge. 

XXXIV.  "We  may  observe  however  on  this  point,  that  in 
most  civil  wars  no  common  judge  is  acknowledged.  If  the 
state  is  monarchical,  the  dispute  turns  either  upon  the  succes- 
sion to  the  crown  or  upon  a  considerable  part  of  the  state's 
pretending,  that  the  king  has  abused  his  power,  in  a  manner, 
which  authorizes  the  subject  to  take  up  arms  against  him. 

XXXV.  In  the  former  case,  the  very  nature  of  the  cause, 
for  which  the  war  is  undertaken,  occasions  the  two  parties  of 
the  state  to  form  as  it  were  two  distinct  bodies,  till  they  come 
to  agree  upon  a  chief  by  some  treaty.  Hence  with  respect  to 
the  two  parties,  which  were  at  war,  it  is  on  such  a  treaty,  that 
the  right  depends,  which  persons  may  have  to  that,  which  has 
been  taken  on  either  side  ;  and  nothing  hinders,  but  this  right 
may  be  left  on  the  same  footing,  and  admitted  to  take  place  in 
the  same  manner,  as  in  public  wars  between  two  states  always 
distinct. 

XXXVI.  As  to  other  nations,  who  were  not  concerned  in  the 
war,  they  have  no  more  authority  to  examine  the  validity  of  the 
acquisitions,  than  they  have  to  be  judges  of  a  war,  made  between 
two  different  states. 

XXXVII.  The  other  case,  I  mean  an  insurrection  of  a  con- 
siderable part  of  the  state  against  the  reigning  prince,  can  rarely 
happen,  except  when  that  prince  has  given  room  for  it,  either 
by  tyranny,  or  by  the  violation  of  the  fundamental  laws  of  the 
kingdom.  Thus  the  government  is  then  dissolved,  and  the 
State  is  actually  divided  into  two  distinct  and  independent  bodies  ; 
so  that  we  are  to  form  here  the  same  judgment,  as  in  the  for- 
mer case. 

Cc 


■2  icy  THE  PRINCIPLES  OF 

XXXVIII.  For  much  stronger  reasons  does  this  take  place  i'w 
the  civil  wars  of  a  republican  state  ;  in  which  the  war,  immedi- 
ately of  itself  destroys  the  sovereignty,  which  subsists  solely  in 
the  union  of  its  members. 

XXXIX.  Grorius  seems  to  have  derived  his  ideas  on  this  sub- 
ject from  the  Roman  laws  y  for  these  decreed,  that  prisoners 
taken  in  a  civil  war  could  not  be  reduced  to  slavery.  This  was, 
r.s  Ulpian  the  civilian*  remarks,  because  they  looked  upon  a  civ- 
il war  not  properly  as  a  war,  but  as  a  civil  dessension  ;  for  adds 
he  a  real  war  is  made  between  those,  who  are  enemies,  and  an- 
imated with  a  hostile  spirit,  which  prompts  them  to  endeavour 
the  ruin  of  eacli  other's  state.  Whereas  in  a  civil  war,  howev- 
er hurtful  it  often  proves  to  the  nation,  the  one  party  wants  to 
cave  itself  in  one  manner,  and  the  other  in  another.  Thus  they 
are  not  enemies,  and  every  person  of  the  two  parties  remains  al- 
ways a  citizen  of  the  state  so  divided. 

XL.  But  all  this  is  a  supposition,  or  fiction  of  right,  which 
does  not  hinder  what  I  have  been  saying  from  being  true,  and 
from  taking  place  in  general.  And  if  among  the  Romans,  a 
person  could  not  appropriate  to  himself  the  prisoners  taken  in  a 
civil  war,  as  real  slaves,  this  was  in  virtue  of  a  particular  law, 
received  among  them,  and  not  on  account  of  any  defect  of  the 
conditions  or  formalities,  which  according  to  Grotius,  are  re- 
quired by  the  law  of  nations,  in  a  public  or  solemn  war. 

XLI.  Lastly  as  to  the  wars  of  robbers  and  pirates,  if  they  do 
not  produce  the  effects  abovementioned,  nor  give  to  those  pirates 
a  right  of  appropriating  what  they  have  taken,  it  is  because  they 
are  robbers,  and  enemies  to  mankind,  and  consequently  persons 
whose  acts  of  violence  are  manifestly  unjust,  which  authorizes  all 
nations  to  treat  them  as  enemies.  Whereas,  in  other  kinds  of 
war,  it  is  bften  difficult  to  judge  on  which  side  the  right  lies  ;  so 
that  the  dispute  continues,  and  ought  to  continue,  undecided, 
with  respect  to  those,  who  are  unconcerned  in  the  war. 
*  Lib.  xxi.  afect.   r.  ff.  de  capt.  &  revers. 


POLITIC  LAW.  2il 

CHAP.  VIII. 

Of  the  right  of  sovereignty  acquired  over  the  conquered. 


B] 


I.  JLJESIDES  the  effects  of  war,  hitherto  mentioned,  there 
remains  one  more,  the  most  important  of  all,  and  which  we  shall 
here  consider ;  I  mean  the  right  of  sovereignty,  acquired  over 
the  conquered.  We  have  already  remarked,  that  when  explain- 
ing the  different  ways  of  obtaining  the  supreme  power,  that  in 
general  it  may  be  acquired  either  in  a  violent  manner,  and  by 
the  right  of  conquest,  Sec. 

II.  We  must  however  observe,  that  war  or  conquest,  consid- 
ered in  itself,  is  not  properly  the  cause  of  this  acquisition  ;  that 
is,  it  is  not  the  immediate  origin  of  sovereignty.  .For  the  su- 
preme power  is  founded  on  the  tacit  or  express  consent  of  the 
people,  without  which  the  state  of  war  still  subsists  ;  for  we 
cannot  conceive  how  there  can  be  an  obligation  to  obey  a  person, 
to  whom  we  have  promised  no  subjection.  War  then  is  prop- 
erly speaking,  no  more  than  the  occasion  of  obtaining  the  sove- 
reignty ;  as  the  conquered  choose  rather  to  submit  to  the  victor, 
than  to  expose  themselves  to  total  destruction. 

III.  Besides,  the  acquisition  of  sovereignty  by  the  right  of 
conquest  cannot,  strictly  speaking,  pass  for  lawful,  unless  the  war 
be  just  in  itself,  and  the  end  proposed  authorizes  the  conqueror 
to  carry  things  to  such  extremity,  as  to  acquire  the  supreme  pow- 
er over  the  vanquished ;  that  is  to  say,  either  our  enemy  must 
have  no  other  means  of  paying  what  he  owes  us,  and  of  indem- 
nifying us  for  the  damages  he  has  committed  ;  or  our  own  safety 
must  absolutely  oblige  us  to  make  him  dependent  on  us.  In 
such  circumstances,  it  is  certain,  that  the  resistance  of  a  van- 
quished enemy,  authorizes  us  to  push  the  acts  of  hostility  against 
him  so  far,  as  to  reduce  him  entirely  under  our  power ;  and  we 
may,  without  injustice,  take  advantage  of  the  superiority  of  our 
arms  to  extort  from  him  the  consent,  which  he  ought  to  give  us 
of  his  own  accord. 

IV.  These  are  the  true  principles,  on   which  sovereignty  by 


tit  THE  PRINCIPLES  OF 

the  right  of  conquest  is  grounded.  Hence  we  may  conclude, 
that  if,  upon  this  foundation,  we  were  to  judge  of  the  different 
acquisitions  of  this  nature,  few  of  them  would  be  found  well  es- 
tablished ;  for  it  rarely  happens,  that  the  vanquished  are  reduced 
to  such  extremity,  as  not  to  be  able  to  satisfy  the  just  preten- 
sions of  the  conqueror,  otherwise  than  by  submitting  themselves 
to  his  dominion. 

V.  Let  us  however  observe,  that  the  interest  and  tranquillity 
of  nations  require,  that  we  should  moderate  the  rigor  of  the 
principles,  above  established.  If  he,  who  has  constrained  anoth- 
er, by  the  superiority  of  his  arms,  to  submit  to  his  dominion,  had 
undertaken  a  war  manifestly  unjust,  or  if  the  pretext,  on  which 
it  is  founded,  be  visibly  frivolous  in  the  judgment  of  every  rea- 
sonable person,  I  freely  confess,  that  a  sovereignty,  acquired  in 
such  circumstances,  would  be  unjust  •,  and  I  see  no  reason,  why 
the  vanquished  people  should  be  more  obliged  to  keep  such  a 
treaty,  than  a  man  who  had  fallen  into  the  hands  of  robbers, 
would  be  under  an  obligation  to  pay,  at  their  demand,  the  money 
he  had  promised  them  for  the  ransom  of  his  life  and  liberty. 

VI.  But  if  the  conqueror  had  undertaken  a  war  for  some 
snecious  reason,  though  perhaps  at  the  bottom  not  strictly  just, 
the  common  interest  of  mankind  requires,  that  we  should  observe 
the  engagements,  we  have  entered  into  with  him,  though  extort- 
by  a  terror  in  itsetf  unjust ;  so  long  at  least,  as  no  new  reason 
supervenes,  which  may  lawfully  exempt  us  from  keeping  our 
promise.  For,  as  the  law  of  nature  directs,  that  societies,  as 
well  as  individuals,  should  labor  for  their  preservation,  it  obliges 
us,  for  this  reason,  not  indeed  to  consider  the  acts  of  hostility 
committed  by  an  unjust  conqueror,  as  properly  just,  but  to  look 
upon  the  engagement  of  an  express,  or  tacit  treaty,  as  neverthe- 
less valid.  So  that  the  vanquished  cannot  be  released  from 
observing  it,  under  the  pretext  of  its  being  caused  by  an  unjust 
fear,  as  he  might  otherwise  do,  had  he  no  regard  to  the  advanta^ 
ges  accruing  from  it  to  mankind. 

VII.  These  considerations  will  have  still  a  greater  weight,  if 
we  suppose,  that  the  conqueror,  or  his  posterity,  peaceably  en- 
joy the  sovereignty,  which  he  has  acquired  by  right  of  conquest, 
and  besides,  that  he  govern  the  vanquished  like  a  humane  and 


POLITIC  LAW.  a  13 

generous  prince.  In  such  circumstances,  a  long  possesion,  ac- 
companied with  an  equitable  government,  may  legitimate  a  con- 
quest, in  its  beginning  and  principle  the  most  unjust. 

VIII.  There  are  modern  civilians,  who  explain  the  thing 
somewhat  differently.  These  maintain,  ^at  in  a  just  war  the 
victor  acquires  a  full  right  of  sovereignty  over  the  vanquished, 
by  the  single  title  of  conquest,  independently  of  any  convention  *, 
and  even  though  the  victor  has  otherwise  obtained  all  the  satis- 
faction and  indemnification,  he  could  require. 

IX.  The  principal  argument,  these  writers  make  use  of,  is, 
that  otherwise  the  conqueror  could  not  be  certain  of  the  peace- 
able possession  of  what  he  has  taken,  or  forced  the  conquered 
to  give  bim,  for  his  just  pretensions  5  since  they  might  retake  it 
from  him,  by  the  same  right  of  war. 

X.  But  this  reason  proves  only,  that  the  conqueror,  who  has 
taken  possession  of  the  enemy's  country,  may  command  in  it 
while  he  holds  it,  and  not  resign  it,  till  he  has  good  security,  that 
he  shall  obtain  or  possess,  without  hazard,  what  is  necessary  for 
the  satisfaction  and  indemnity,  which  he  has  a  right  to  exact  by 
force.  But  the  end  of  a  just  war  does  not  always  demand,  that 
the  conqueror  should  acquire  an  absolute  and  perpetual  right  of 
sovereignty  over  the  conquered.  It  is  only  a  favorable  occasion  of 
obtaining  it ;  and  for  that  purpose,  there  must  always  be  an  ex- 
press or  tacit  consent  of  the  vanquished.  Otherwise,  the  state 
of  war  si-ill  subsisting,  the  sovereignty  of  the  conqueror  has  no 
other  title,  than  that  of  force,  and  lasts  no  longer,  than  the  van- 
quished are  unable  to  throw  off  the  yoke. 

XI.  All  that  can  be  said,  is,  that  nautral  powers,  purely  be- 
cause they  are  such,  may  and  ought  to  look  upon  the  conqueror, 
as  the  lawful  possessor  of  the  sovereignty,  even  though  they 
should  believe  the  war  unjust  on  his  side. 

XII.  The  sovereignty,  thus  acquired  by  the  right  of  war,  is 
generally  of  the  absolute  kind.  But  sometimes  the  vanquished 
enter  into  certain  conditions  with  the  conqueror,  which  limit, 
in  some  measure  the  power  he  acquires  over  them.  Be  this 
as  it  may,  it  is  certain,  that  no  conquest  ever  authorises  a  prince 
to  govern  a  people  tyrannically ;  since,  as  we  have  before 
shown,  the  most  absolute  sovereignty  gives  no  right  to  oppress 


ft  14  THE  PRINCIPLES  OF 

those,  who  have  surrendered }  for  even  the  very  intention  of 
government,  and  the  laws  of  nature,  equally  conspire  to  lay  the 
conqueror  under  an  obligation,  of  governing  those,  whom  he 
has  subdued,  with  moderation  and  equity. 

XIII.  There  are  therefore  several  precautions  to  be  used  in 
the  exercise  of  the  sovereignty,  acquired  over  the  vanquished  ; 
such  for  instance  was  that  prudent  moderation  of  the  ancient 
Romans,  who  confounded,  in  some  measure,  the  vanquished 
with  the  victors,  by  hastening  to  incorporate  them  with  them- 
selves, and  to  make  them  sharers  of  their  liberty  and  advantag- 
es. A  piece  of  policy  doubly  salutary;  which,  at  the  same 
time,  that  it  rendered  the  condition  of  the  vanquished  more 
agreeable,  considerably  strengthened  the  power  and  empire  of 
the  Romans.  "  What  would  our  empire  now  have  been,"  says 
Seneca,  "  if  the  vanquished  had  not  been  intermixed  with  the 
'*  victors,  by  the  effect  of  a  sound  policy  ?"  Romulus,  our  found- 
l(  er,"  says  Claudius  in  Tacitus,  "  was  very  wise  with  respect  to 
"  most  of  the  people  he  subdued,  by  making  those,  who  were 
(s  his  enemies,  the  same  day  citizens." 

XIV.  Another  moderation  in  victory  consists  in  leaving  to 
the  conquered,  either  kings  or  people,  the  sovereignty,  which 
they  enjoyed,  and  not  to  change  the  form  of  their  government. 
No  better  method  can  be  taken  to  secure  a  conquest ;  and  of 
this  we  have  several  examples  in  ancient  history,  especially  in 
that  of  the  Romans. 

XV.  But  if  the  conqueror  cannot,  without  danger  to  him- 
self, grant  ail  these  advantages  to  the  conquered  ;  yet  things  may 
be  so  moderated,  that  some  part  of  sovereignty  shall  be  left  to 
them,  or  to  their  kings.  Even  when  we  strip  the  vanquished 
entirely  of  their  independency,  we  may  still  leave  them  their 
own  laws,  customs,  and  magistrates,  in  regard  to  their  public 
and  private  affairs,  of  small  importance. 

XVI.  "We  must  not,  above  all  things,  deprive  the  vanquished 
of  the  exercise  of  their  religion,  unless  they  happen  to  be  con- 
vinced of  the  truth  of  that,  which  the  conquerer  professes.  This 
complaisance  is  not  onlyof  itself  very  agreeable  to  the  vanquish- 
ed, but  the  conqueror  is  absolutely  obliged  to  it;  and  he  cannot, 
without  tyranny,  oppress  them  in  this  article.       Not  that  he 


POLITIC  LAW.  213 

ought  not  to  try  to  bring  the  vanquished  to  the  true  religion  j 
but  he  should  only  use  such  means,  as  are  proportioned  to  the 
nature  of  the  thing,  and  to  the  end  he  has  in  view  ;  and 
such,  as  have  in  themselves  nothing  violent,  or  contrary  to  hu- 
manity. 

XVII.  Let  us  observe  lastly,  that  not  only  humanity,  but 
prudence  also,  and  even  the  interest  of  the  victor,  require  that 
what  we  have  been  saying,  with  respect  to  a  vanquished  peo- 
ple should  be  strictly  practised.  It  is  an  important  maxim  in 
politics,  that,  it  is  more  difficult  to  keep,  than  to  conquer  prov- 
inces. Conquests  demand  no  more  than  force,  but  justice 
must  preserve  them.  These  are  the  principal  things  to  be  ob- 
served, in  respect  to  the  different  effects  of  war,  and  to  the  most 
essential  questions  relative  to  that  subject.  But  as  we  have  al- 
ready had  occasion  to  make  mention  of  the  article  of  neutrality, 
it  will  not  be  improper  to  say  something  more  particular  about  it. 

Of  neutrality. 

I.  There  is  a  general  and  a  particular  neutrality.  The  gene- 
ral is,  when,  without  being  allied  to  either  of  the  two  enemies 
at  war,  we  are  disposed  to  render  to  each  the  good  offices,  which 
every  nation  is  naturally  obliged  to  perform  to  other  states. 

II.  The  particular  neutrality  is,  when  we  are  particularly  en- 
gaged to  be  neuter  by  some  compact,  either  tacit  or  express. 

III.  The  latter  species  of  neutrality  is  either  full  and  entire, 
when  we  behave  alike  towards  both  parties  ;  or  limited,  as  when 
we  favour  one  side  more  than  the  other. 

IV.  We  cannot  lawfully  constrain  any  person  to  enter  into 
a  particular  neutrality ;  because  every  one  is  at  liberty  to  make, 
or  not  to  make,  particular  treaties,  or  alliances  ;  or  at  least,  they 
are  not  bound  to  do  it,  but  by  virtue  of  an  imperfect  obligation. 
But  he,  who  has  undertaken  a  just  war,  may  oblige  other  nations 
to  observe  an  exact  and  general  neutrality  •,  that  is  to  say,  not 
to  favor  his  enemy  more  than  himself. 

V.  We  shall  give  here  an  abstract,  as  it  were,  of  the  duties 
of  neutral  nations.  They  are  obliged  equally  to  put  in  practice, 
towards  both  parties  at  war,  the  laws  of  nature,  as  well  absolute 


Ii6  THE  PRINCIPLES  OF 

as  conditional,  whether  these  impose  a  perfect,  or  only  an  im- 
perfect obligation. 

VI.  If  they  do  the  one  any  office  of  humanity,  they  ought 
not  to  refuse  the  like  to  the  other,  unless  there  be  some  manifest 
reason,  which  engages  them  to  do  something  in  favor  of  the 
one,  which  the  other  had  otherwise  no  right  to  demand. 

VII.  But  they  are  not  obliged  to  do  offices  of  humanity  to 
one  party,  when  they  expose  themselves  to  great  danger,  by  re- 
fusing them  to  the  other,  who  has  as  good  a  right  to  demand 
them. 

VIII.  They  ought  not  to  furnish  either  party  with  things, 
which  serve  to  exercise  acts  of  hostility,*  unless  they  are  au- 
thorized to  do  it  by  some  particular  engagement  *,  and  in  regard 
to  those,  which  are  of  no  use  in  war,  if  they  supply  one  side 
with  them,  they  must  also  the  other. 

IX*  They  ought  to  use  all  their  endeavours  to  bring  matters 
to  an  accommodation,  that  the  injured  party  may  obtain  satis- 
isfaction,  and  the  war  be  brought  to  speedy  conclusion. 

X.  But  if  they  be  under  any  particular  engagement,  they 
should  punctually  fulfil  it. 

XI.  On  the  other  side,  those,  who  are  at  war,  must  exactly 
observe,  towards  neutral  nations,  the  laws  of  sociability,  and. 
not  exercise  any  act  of  hostility  against  them,  nor  suffer  their 
country  to  be  plundered. 

XII.  They  may  however,  in  case  of  necessity,  take  posses- 
sion of  a  place,  situated  in  a  neutral  country  ;  provided,  that, 
as  soon  as  the  danger  is  over,  they  restore  it  to  the  right  own- 
er, and  make  him  satisfaction  for  the  damages,  he  has  received. 

CHAP.  IX. 

Of  public  treaties  in  general. 

I.  X  HE  subject  of  public  treaties  constitutes  a  considera- 
ble part  of  the  law  of  nations,  and  deserves  to  have  its  principles 

*  Those  commodities,  which  serve  to  exercise  acts  of  hostility,  or  are  particu- 
larly useful  in  war,  and  in  which  the  commerce  of  neutral  with  belligerent 
nations  is  forbidden  by  the  laws  of  war,  are  denominated  contraband  goods. 
On  this  subject  see  Grotius  de  Jure  Belli  et  Pacis,  lib.  III.  cap.  I.  Also  VaS- 
tel's  Law  of  Nations,  b.  III.  ch.  VII. 


POLITIC  LAW.  217 

and  rules  explained  with  some  exactness.  By  public  treaties, 
we  mean  such  agreements  as  can  be  made  oniy  by  public  au- 
thority, or  those,  which  sovereigns,  considered  as  such,  make  with 
each  other,  concerning  things,  which  directly  concern  the  welfare 
o*r  the  state  This  is  what  distinguishes  these  agreements,  not 
only  from  those,  which  individuals  make  with  each  other,  but 
also  from  the  contracts  of  kings  in  regard  to  their  private  aff  irs. 

II.  What  we  have  before  observed,  concerning  the  necessity 
of  introducing  conventions  betwixt  private  men,  and  the  advan- 
tages arising  from  them,  may  be  applied  to  nations  and  differ- 
ent states.  Nations  may,  by  means  of  treaties,  unite  themselves 
more  particularly  into  a  society,  which  shall  reciprocally  assure 
them  of  seasonable  assistance,  either  for  the  necessaries  and  con- 
veniences of  life,  or  to  provide  for  their  greater  security  upon  the 
breaking  out  of  a  war. 

III.  As  this  is  the  case,  sovereigns  are  no  less  obliged,  than 
individuals,  inviolably  to  keep  their  word,  and  be  faithful  to  their 
engagements.  The  law  of  nations  renders  this  an  indispensable 
duty  j  for  it  is  evident,  that,  were  it  otherwise,  not  only  public 
treaties  would  be  useless  to  states,  but  moreover,  that  the  viola- 
tion of  these  would  throw  them  into  a  state  of  diffidence  and  con- 
tinual war;  that  is  to  say,  into  the  most  terrible  situation.  The 
obligation  therefore  of  sovereigns,  in  this  respect,  is  so  much  the 
stronger,  as  the  violation  of  this  duty  has  more  dangerous  con- 
sequences, which  interest  the  public  felicity.  The  sanctity  of 
an  oath,  which  generally  accompanies  solemn  treaties,  is  an  ad- 
ditional motive  to  engage  princes  to  observe  them  with  the  ut- 
most fidelity  ;  and  certainly  nothing  is  more  shameful  for  sove- 
reigns, who  so  rigorously  punish  such  of  their  subjects,  as  fail 
in  their  engagements,  than  to  sport  with  treaties  and  public 
faith,  and  to  look  upon  these  only,  as  the  means  of  deceiving 
each  other. 

The  royal  word  ought  therefore  to  be  inviolable  and  sacred,. 
But  there  is  reason  to  apprehend,  that  if  princes  are  not  more 
attentive  to  this  point,  this  expression  will  soon  degenerate  into 
an  opposite  sense,  in  the  same  manner  as  formerly  Carthaginian 
faith*  was  taken  for  perfidy. 

*  Punica  fides. 


21 8  THE  PRINCIPLES  OF 

IV.  We  muit  likewise  observe,  that  the  several  principles,  al- 
ready established  concerning  the  validity  of  conventions  in  gen- 
eral, agree  to  public  treaties,  as  well  as  the  contracts  of  individ- 
uals. In  both,  therefore,  there  must  be  a  serious  consent,  prop- 
erly declared,  and  exempt  from  error,  fraud,  and  violence. 

V.  If  treaties,  made  in  those  circumstances,  be  obligatory 
between  the  respective  states  or  sovereigns,  they  are  also  bind- 
ing with  regard  to  the  subjects  of  each  prince  in  particular. 
They  oblige  as  compacts  between  the  contracting  powers  •,  but 
they  have  no  force  of  laws  with  respect  to  the  subjects  consid- 
ered as  such  -,  for  it  is  evident,  that  two  sovereigns,  who  con- 
clude a  treaty,  lay  their  subjects  thereby  under  an  obligation  of 
doing  nothing  contrary  to  it. 

VI.  There  are  several  distinctions  of  public  treaties  j  and 
I .  some  turn  simply  on  things,  to  which  we  were  before  oblig- 
ed by  the  law  of  nature  •,  and  others  superadd  some  particu- 
lars to  the  duties  of  natural  law. 

VII.  Under  the  former  head  we  may  rank  all  those  treaties, 
by  which  we  are  purely  and  simply  engaged  to  do  no  injury  to 
others,  but,  on  the  contrary,  to  perform  all  the  duties  of  humanity 
towards  them.  Among  civilized  nations,  who  profess  to  fol- 
low the  laws  of  nature,  such  treaties  are  not  necessary.  Duty 
alone  is  sufficient,  without  a  formal  engagement.  But  among 
the  ancients,  these  treaties  were  thought  expedient,  the  com- 
mon opinion  being,  that  they  were  obliged  to  observe  the  laws 
of  humanity  only  to  fellow  subjects,  and  that  they  might  con- 
sider all  strangers  as  foes,  and  treat  them  as  such,  unless  they 
had  entered  into  some  engagement  to  the  contrary  ;  and  of  this 
we  have  many  instances  in  history.  The  profession  of  free- 
booter, or  private,  was  no  way  shameful  among  several  nations  ; 
and  the  word  bast  is,  which  the  Romans  used  to  express  an  en- 
emy, originally  signified  no  more  than  a  stranger. 

VIII.  Under  the  second  kind  I  comprehend  all  those  com- 
pacts by  which  two  nations  enter  into  some  new,  or  more  par- 
ticular obligation  •,  as  when  they  formally  engage  to  things,  to 
which  they  were  not  bound,  but  in  virtue  of  an  imperfect  obli- 
gation,  or  even  to  which  they  were  no  ways  before  obliged. 

IX.  2.  Treaties,  by  which  we  engage  to  something  more 


POLITIC  LAW.  219 

than  what  we  are  obliged  to,  in  virtue  of  the  law  of  nature,  are 
also  of  two  kinds  ;    6ome  equal,  others  unequal. 

3.  Both  are  made  either  in  time  of  war,  or  in  full  peace. 

X.  Equal  treaties  are  those,  contracted  with  an  entire  equali- 
ty on  both  sides  ;  that  is  to  say,  when  not  only  the  engagements 
and  promises  are  equal  on  both  sides,  either  purely  and  sim- 
ply, or  in  proportion  to  the  strength  of  each  contracting  party  j 
but  also,  when  they  engage  on  the  same  footing  3  so  that  nei- 
ther of  the  parties  is  in  any  respect  inferior  to  the  other. 

XI.  These  treaties  are  made  either  with  a  view  to  commerce^ 
or  to  confederacy  in  war,  or  in  short  to  any  other  matters. 
With  respect  to  commerce,  for  example,  by  stipulating,  that  the 
subjects,  on  either  side,  shall  be  free  from  all  custom  or  toll, 
or  that  no  more  shall  be  demanded  of  them,  than  of  the  natives 
of  the  country,  &c.  Equal  treaties,  or  leagues  relating  to  war, 
are,  when  we  stipulate  for  example,  that  each  shall  furnish  the 
other  an  equal  number  of  troops,  ships,  and  other  things ;  and 
this  in  all  kinds  of  war,  defensive  as  well  as  offensive,  or  in  de- 
fensive only,  &c.  Lastly,  treaties  of  equality  may  also  turn 
upon  any  other  matter ;  as  when  it  is  agreed,  that  one  shall 
have  no  forts  on  the  other's  frontiers ;  that  one  shall  not  grant 
protection  to  the  other's  subjects,  in  some  criminal  cases,  but 
order  them  to  be  siezed  and  sent  back  •,  that  one  shall  not  give 
the  other's  enemies  passage  through  his  country,  and  the   like. 

XII.  What  we  have  been  saying  sufficiently  shows  the 
meaning  of  unequal  treaties.  And  these  are,  when  the  prom- 
ises are  either  unequal,  or  such  as  lay  harder  conditions  on  one 
of  the  parties,  than  on  the  other.  The  inequality  of  the  things 
stipulated  is  sometimes  on  the  side  of  the  most  powerful  con- 
federate, as  when  he  pi'omises  his  assistance  to  the  other,  with- 
out requiring  the  like  ;  and  sometimes  on  the  side  of  the  infe- 
rior confederate,  as  when  he  engages  to  do  more  for  the  strong- 
er, than  the  latter  promises  in  return. 

XIII.  All  the  conditions  of  unequal  treaties  are  not  of  the 
same  nature-,  some  there  are,  which,  though  burdensome  to  the 
inferior  ally,  yet  leave  the  sovereignty  intire  ;  others  on  the 
contrary,  include  a  diminution  of  the  independence,  and  sove* 
reignty  of  the  inferior  ally. 


32o  THE  PRINCIPLES  OF 

Thus,  in  the  treaties  between  the  Romans,  and  the  Cartha- 
ginians, at  the  end  of  the  second  Punic  war,  it  was  stipulated, 
that  the  Carthaginians  should  not  begin  any  war,  without  the 
consent  of  the  Roman  people  •,  an  article,  which  evidently- 
diminished  the  sovereignty  of  Carthage,  and  made  her  depen- 
dent on  Rome. 

But  the  sovereignty  of  the  inferior  ally  continues  intire, 
though  he  engages,  for  example,  to  pay  the  other's  army,  to  de- 
fray the  expences  of  the  war,  to  dismantle  some  towns,  to  give 
hostages,  to  look  upon  all  those  as  friends  or  enemies,  who  are 
friends  or  enemies  to  the  other,  to  have  no  forts,  or  strong  holds 
in  certain  parts,  to  avoid  sailing  in  particular  seas,  to  acknowl- 
edge the  preeminence  of  the  other,  and,  upon  occasion,  to  shew 
reverence  and  honor  to  his  power  and  majesty,  Sec. 

XIV.  However,  though  these,  a. id  other  similar  conditions, 
do  not  diminish  the  sovereignty,  it  is  certain  that  such  treaties 
of  inequality  are  often  of  so  delicate  a  nature,  as  to  require 
the  greatest  circumspection;  anil  that  if  the  prince,  who  is  su- 
perior to  the  other  in  dignity,  surpasses  him  also  considerably 
in  strength  and  power,  it  is  to  be  feared,  that  the  former  will 
gradually  acquire  an  absolute  sovereignty  over  hirn,  especially 
if  the  confederacy  be  perpetual. 

XV.  4.  Public  treaties  are  also  divided  into  real  and  personal,, 
The  latter  are  those,  made  with  a  prince  purely  in  regard  to 
his  person,  and  expire  with  him.  The  former  are  such,  as  are 
made  rather  with  the  whole  body  of  the  state,  than  with  the 
king  or  government,  and  which  consequently  outlive  those,  who 
made  them  and  oblige  their  successors. 

XVI.  To  know  which  of  these  two  classes  every  treaty  be- 
longs to,  the  following  rules  may  be  laid  down. 

I.  We  must  first  attend  to  the  form  and  phrase  of  the  trea- 
ty, to  its  clauses,  and  the  views  proposed  by  the  contracting 
parties.  Utrum  autem  in  rem,  an  in  personam  factum  est,  non  mi- 
nus ex  verbis,  quam  ex  mente  convenientium  astimandum  est* 
Thus,  if  there  be  an  express  clause,  mentioning,  that  the  treaty 
is  perpetual,  or  for  a  certain  number  of  years,  or  for  the  good 
of  the  state,  or  with  the  king  for  him  and  his  successors,  wc- 
may  conclude,  that  the  treaty  is  real. 
*  Leg.  vii.  sect,  viii  ff.  de  Pactis. 


POLITIC  LAW.  421 

2.  Every  treaty,  made  with  a  republic,  is  in  its  own  nature 
real,  because  the  subject,  with  whom  we  contract  it,  is  a  thing 
permanent. 

3.  Though  the  government  should  happen  to  be  changed 
from  a  republic  into  a  monarchy,  the  treaty  is  still  in  force,  be- 
cause the  body  is  still  the  same,  and  has  only  another  chief. 

4.  "We  must  however  make  an  exception  here,  which  is, 
when  it  appears  that  the  preservation  of  the  republican  govern-* 
ment  was  the  true  cause  of  the  treaty ;  as  when  two  republic* 
enter  into  an  alliance,  by  which  they  agree  to  assist  one  anoth- 
er, against  such,  as  shall  endeavour  by  force  to  alter  their  con- 
stitution, and  deprive  them  of  their  liberties. 

5.  In  case  of  doubt  every  public  treaty,  made  with  a  king, 
ought  to  be  deemed  real,  because  in  dubious  cases,  the  king  is 
supposed  to  act  as  chief,  and  for  the  good  of  the  state. 

6.  Hence  it  follows,  that  as,  after  the  change  of  a  democra- 
cy into  a  monarchy,  the  treaty  is  still  in  force,  in  regard  to  the 
new  sovereign ;  so  if  the  government,  from  a  monarchy,  be- 
comes a  republic,  the  treaty  made  with  the  king  does  not  ex- 
pire, unless  it  was  manifestly  personal. 

7.  Every  treaty  of  peace  is  real  in  its  own  nature,  and  ought 
to  be  kept  by  the  successor  j  for  so  soon  as  the  conditions  of 
the  treaty  have  been  punctually  fulfilled,  the  peace  effectually 
effaces  the  injuries,  which  excited  the  war,  and  restores  the 
nations  to  their  natural  situation. 

8.  If  one  of  the  confederates  has  fulfilled  what  the  treaty 
obliged  him  to,  and  the  other  should  die  before  he  performs 
the  engagements  on  his  part,  the  successor  of  the  deceased  king 
is  obliged  either  intirely  to  indemnify  the  other  party  for  what 
he  has  performed,  or  to  fulfil  his  predecessor's  engagement. 

9.  But  if  nothing  is  executed  on  either  part,  or  the  perform- 
ances on  both  sides  are  equal,  then  if  the  treaty  tends  directly 
to  the  personal  advantage  of  the  king,  or  his  family,  it  is  evi- 
dent, that  so  soon  as  he  dies,  or  his  family  is  extinct,  the  trea- 
ty must  also  expire. 

10.  Lastly  we  must  observe,  that  it  is  grown  into  a  custom 
for  successors  to  renew,  at  least  in  general  terms,  even  the  trea- 
ties manifestly  acknowledged  for   real,  that  they  may  be   the 


222  THE  PRINCIPLES  OF 

more  strongly  bound  to  observe  them,  and  may  not  think  them- 
selves dispensed  from  that  obligation,  under  a  pretext  that  they 
have  different  ideas  concerning  the  interests  of  the  state,  from 
those  of  their  predecessors. 

XVII.  Concerning  treaties,  or  alliances,  it  is  often  disputed, 
whether  they  may  be  lawfully  made  with  those,  who  do  not 
profess  the  true  religion  ?  I  answer,  that  by  the  law  of  nature 
there  is  no  difficulty  in  this  point.  The  right  of  making  alli- 
ances is  common  to  all  men,  and  has  nothing  opposite  to  the 
principles  of  true  religion ;  which  is  so  far  from  condemning 
prudence  and  humanity,  that  it  strongly  recommends  both.* 

XVIII.  To  judge  rightly  of  the  causes,  which  put  an  end 
to  public  treaties,  we  must  carefully  attend  to  the  rule  of  con- 
ventions in  general. 

i.  A  treaty  concluded  for  a  certain  time,  expires  at  the  end 
of  the  term  agreed  on. 

2.  When  a  treaty  is  once  expired,  it  must  not  be  supposed 
to  be  tacitly  renewed ;  for  a  new  obligation  is  not  easily  pre- 
sumed. 

3.  And  therefore,  if,  after  the  treaty  expires,  some  acts  are 
continued,  which  seem  conformable  to  the  terms  of  the  preced- 
ing alliance,  they  ought  rather  to  be  looked  upon,  as  simple 
marks  of  friendship  and  benevolence,  than  as  a  tacit  renovation 
of  the  treaty. 

4.  We  must  however  make  this  exception,  unless  such  acts 
Intervene,  as  can  bear  no  other  construction,  than  that  of  a  ta- 
cit renovation  of  the  preceding  compact.  Thus,  for  example, 
if  one  ally  has  engaged  to  pay  another  a  certain  sum  annually, 
and  after  the  expiration  of  the  term  of  the  alliance,  the  same 
sum  be  paid  the  following  year,  the  alliance  is  tacitly  renew- 
ed for  that  year. 

5.  It  is  in  the  nature  of  all  compacts  in  general,  that  when 
one  of  the  parties  violates  the  engagements,  into  which  he  had 
entered  by  treaty,  the  other  is  freed,  and  may  refuse  to  stand 
to  the  agreement  •,  for  generally  each  article  of  the  treaty  has 
the  force  of  a  condition,  the  want  of  which  renders  it  void. 

6.  This  is  generally  the  case,  that  is  to  say,  when  there  is  no 
*  See  Grotius  on  war  and  peace,  book  ii.  chap.  xv.  sect.  8,  9, 10  11,  XI, 


POLITIC  LAW.  223 

agreement  otherwise ;  for  sometimes  this  clause  is  inserted, 
that  the  violation  of  any  single  article  of  the  treaty  shall  not 
break  it  intirely  -,  to  the  end,  that  neither  party  should  fly  from 
their  engagements  for  every  slight  offence.  But  he  who,  by 
the  action  of  another,  suffers  any  damage,  ought  to  be  indem- 
nified in  some  shape  or  another. 

XIX.  None  but  the  sovereign  can  make  alliances  and  trea- 
ties, either  by  himself,  or  by  his  ministers.  Treaties  concluded 
by  ministers  oblige  the  sovereign  and  the  state,  only  when  the 
ministers  have  been  duly  authorized  to  make  them,  and  have 
done  nothing  contrary  to  their  orders  and  instructions.  And 
here  it  may  be  observed,    that  among  the    Romans   the  word 

fcedus,  a  public  compact)  or  solemn  agreement,  signified  a  treaty 
made  by  order  of  the  sovereign  power,  or  that  had  been  after- 
wards ratified  ;  but  when  public  persons,  or  ministers  of  state, 
had  promised  something  relating  to  the  sovereign  power,  with- 
out advice  and  command  from  it,  this  was  called  sponsio,  or  a 
simple  promise  and  engagement. 

XX.  In  general  it  is  certain,  that  when  ministers,  without 
the  order  of  their  sovereign,  conclude  a  treaty  concerning  pub- 
lic affairs,  the  latter  is  not  obliged  to  stand  to  it ;  and  the  min- 
ister, who  has  entered  into  the  negotiation  without  instructions, 
may  be  punished  according  to  the  exigency  of  the  case.  How- 
ever there  may  be  circumstances,  in  which  a  prince  is  obliged, 
either  by  the  rules  of  prudence,  or  even  those  of  justice  and 
equity,  to  ratify  a  treaty,  though  concluded  without  his  orders. 

XXI.  When  a  sovereign  is  informed  of  a  treaty,  made  by 
one  of  his  ministers  without  his  orders,  his  silence  alone  does 
not  imply  a  ratification,  unless  it  be  accompanied  with  some  act, 
or  other  circumstance,  which  cannot  well  bear  another  explica- 
tion. And  much  more,  if  the  agreement  was  made  upon  con- 
dition of  its  being  ratified  by  the  sovereign,  it  is  of  no  force  till 
he  has  ratified  it  in  a  formal  manner. 


224  THE  PRINCIPLES  OF 

CHAP.    X. 

Of  compacts  made  with  an  enemy. 

1.  -Z~\.MONG  public  compacts,  those,  which  suppose  a 
state  of  war ,  and  are  made  with  an  enemy,  deserve  particular 
attention.  Of  these  there  are  two  kinds  ;  some,  which  do  not 
put  an  end  to  the  war,  but  only  moderate  or  suspend  the  acts 
of  hostility  •,  and  others,  which  end  the  war  entirely.  But  be- 
fore we  consider  these  compacts  in  particular,  let  us  inquire  in- 
to the  validity  of  them  in  general. 

Whether  we  ought  to  keep  our  faith  given  to  an  enemy  ? 

II.  This  question  is  certainly  one  of  the  most  curious  and 
important,  belonging  to  the  law  of  nations.  Grotius  and  Puffen- 
dorf  are  not  agreed  in  this  point.  The  former  maintains,  that 
all  compacts,  made  with  an  enemy,  ought  to  be  kept  with  an 
inviolable  fidelity.  But  Puffendorf  is  somewhat  dubious  with 
respect  to  those  compacts,  which  leave  us  in  state  of  war,  with- 
out a  design  to  remove  it.  Let  us  therefore  endeavour  to  es- 
tablish some  principles,  by  means  of  which  we  may  determine 
with  respect  to  these  two  opinions. 

III.  I  observe,  I.  That  though  war  of  itself  destroys  the 
state  of  society  between  two  nations,  we  must  not  thence  con- 
clude that  it  is  subjected  to  no  law,  and  that  all  right  and  obliga- 
tion are  absolutely  at  an  end  between  enemies. 

2.  On  the  contrary,  every  body  grants  that  there  is  a  right 
of  war,  obligatory  of  itself,  between  enemies,  and  which  they 
cannot  violate,  without  being  defective  in  their  duty.  This  is 
what  we  have  proved  before  by  showing,  that  there  are  just 
and  unjust  wars  ;  and  that,  even  in  the  justest,  it  is  not  allowa- 
ble to  push  acts  of  hostility  to  the  utmost  extremity,  but  that 
we  ought  to  keep  within  certain  bounds  ;  and  consequently, 
that  there  are  things  unjust  and  unlawful,  even  with  respect  to 
an  enemy.  Since  therefore  war  does  not,  of  itself,  subvert  all 
the  laws  of  society,  we  cannot   from   this  alone  conclude,  that, 


POLITIC  LAW.  225 

because  two  nations  are  at  war  with  each  other,  they  are  dis- 
pensed from  keeping  their  word,  and  from  fulfilling  the  en- 
gagements they  have  made  with  each  other,  during  the  course 
of  the  war. 

■3.  As  war  is  in  itself  a  very  great  evil,  it  is  the  common  in- 
terest of  nations  not  to  deprive  themselves  voluntarily  of  the 
means,  which  prudence  suggests  to  moderate  the  rigor,  and  to 
suspend  the  effects  of  it.  On  the  contrary,  it  is  their  duty  to 
endeavour  to  procure  such  means,  and  to  make  use  of  them 
upon  occasion  ;  so  far  at  least,  as  the  attainment  of  the  law- 
ful end  of  war  will  permit.  Now  there  is  nothing  but  public 
faith,  that  can  procure  to  the  parties,  engaged  in  war,  the  liber- 
ty to  take  breath  ;  nothing  but  this  can  secure  to  towns,  that 
have  surrendered,  the  several  rights,  which  they  have  reserved 
by  capitulation.  What  advantage  would  a  nation  gain,  or  rath~ 
er,  what  is  it  they  would  not  lose,  if  they  were  to  have  no  re- 
gard to  their  faith,  given  to  an  enemy,  and  if  they  looked  upon 
compacts,  made  in  such  circumstances,  only  as  the  means  of 
circumventing  one  another  ?  Surely  it  is  not  to  be  supposed 
that  the  law  of  nature  approves  of  maxims  so  manifestly  oppo- 
site to  the  common  good  Gf  mankind.  Besides,  we  ought  nev- 
er to  wage  war,  merely  for  the  sake  of  it,  but  only  through  ne- 
cessity, in  order  to  obtain  a  just  and  reasonable  satisfaction,  and 
a  solid  peace  ;  whence  it  evidently  follows,  that  the  right  of  war 
between  enemies  cannot  extend  so  far,  as  to  render  hostilities 
perpetual,  and  to  create  an  invincible  obstacle  to  the  reestablish- 
ment  of  the  public  tranquillity. 

4.  And  yet  this  would  certainly  be  the  consequence,  if  the 
law  of  nature  did  not  lay  us  under  an  indispensable  obligation 
of  performing  whatever  agreement  we  have  voluntarily  made 
with  the  enemy  during  the  war  ;  whether  these  agreements 
'<end  only  to  suspend,  or  moderate  acts  of  hostility,  or  whether 
they  are  designed  to  make  them  cease  entirely,  and  to  reestab- 
lish peace. 

For  in  short  there  are  only  two  ways  of  obtaining  peace- 
The  first  is  the  total  and  entire  destruction  of  our  enemy  ;  an^ 
the  second  is  the  entering  into  articles  of  treaty  with  him.  It 
therefore  treaties  and  compacts,   made  between  enemies,  were. 

Ee 


226  THE  PRINCIPLES  OF 

not  in  themselves  sacred  and  inviolable,  there  would  be  no  other 
means  of  procuring  a  solid  peace,  than  carrying  on  the  war  to 
the  utmost  extremity,  and  to  the  total  ruin  of  our  enemies. 
But  who  does  not  see  that  a  principle,  which  tends  to  the  des- 
truction of  mankind,  is  directly  contrary  to  the  law  of  nature 
and  nations,  whose  principal  end  is  the  preservation  and  happi- 
ness of  human  society  ? 

5.  There  is  no  distinction,  in  this  respect,  between  the  dif- 
ferent treaties,  that  we  may  enter  into  with  an  enemy  ;  for  the 
obligation,  which  the  laws  of  nature  lay  upon  us,  to  observe 
them  inviolably  relates  as  well  to  those,  which  do  not  put  an 
end  to  the  war,  as  to  those,  which  tend  to  reestablish  peace. 
There  is  no  medium,  and  we  must  lay  it  down  as  a  general 
rule,  that  all  compacts  with  an  enemy  are  obligatory,  or  that 
none  of  them  are  really  such. 

And  indeed,  if  it  were  lawful  for  instance  to  break  a  solemn 
truce,  and  to  detain,  without  any  reason  for  it,  people,  to  whom 
we  had  given  passports,  &c.  what  harm  would  there  be  in  cir- 
cumventing an  enemy,  under  a  pretext  of  treating  of  peace  ? 
When  we  enter  into  a  negotiation  of  this  kind,  we  are  still  ene- 
mies ;  and  it  is  properly  but  a  kind  ©f  truce,  which  we  agree 
to,  in  order  to  see  if  there  be  any  means  of  coming  to  an  ac- 
commodation. If  the  negociations  prove  unsuccessful,  it  is 
not  then  a  new  war,  which  we  begin,  since  the  differences, 
that  occasioned  our  taking  up  arms,  are  not  yet  adjusted  ;  we 
only  continue  the  acts  of  hostility,  which  had  been  suspended 
for  some  time  •,  so  that  we  could  no  more  rely  on  the  enemy's 
sincerity,  with  respect  to  compacts,  which  tend  to  reestablish 
peace,  than  to  those,  whose  end  is  only  to  suspend,  or  moder- 
ate arts  of  hostility.  Thus  distrusts  would  be  continual,  wars 
eternal,  and  a  solid  peace  unattainable. 

6.  The  more  frequent  unnecessary  wars  are  become,  through 
the  avarice  and  ambition  of  sovereigns,  the  more  a  steady  ad- 
herence to  the  principles,  here  established,  is  indispensably  ne- 
cessary for  the  interest  of  mankind.  Cicero  therefore  justly 
affirms,  that  there  is  a  right  of  war,  which  ought  to  be  observ- 


POLITIC  LAW.  »27 

ed  between  the  contending  parties,  and  that  the  enemy  retains 
certain  rights,  notwithstanding  the  war.* 

Nor  is  it  sufficient  to  say,  as  Puffendorf  does,  that  it  is  a 
custom,  which,  among  others,  has  obtained  among  civilized  na* 
tions,  out  of  particular  respect  to  military  bravery,  that  all  com- 
pacts made  with  an  enemy  ought  to  be  looked  upon  as  valid. 
He  should  also  have  added,  that  this  is  an  indispensable  duty, 
that  justice  requires  it,  that  it  is  not  in  the  power  of  nations  to 
establish  things  on  another  footing,  and  that  they  cannot  justly 
deviate  from  the  rules,  which  the  law  of  nature  prescribes,  in 
this  case,  for  their  common  advantage. 

IV.  It  will  not  be  difficult,  by  means  of  the  principles  here 
established,  to  answer  the  arguments,  by  which  Puffendorf  pre- 
tends to  show,  that  all  compacts,  made  with  an  enemy,  are  not 
of  themselves  obligatory.  We  shall  be  content  with  observing, 
I.  that  those  arguments  prove  nothing,  because  they  prove  too 
much,  &c.  and  2.  all,  that  can  be  concluded  from  them,  is, 
that  we  ought  to  act  prudently,  and  take  proper  precautions 
before  we  pass  our  word,  or  enter  into  any  engagement  with 
an  enemy ;  because  mankind  are  apt  to  break  their  promises 
for  their  own  interest,  especially  when  they  have  to  deal  with 
people,  whom  they  hate,  or  by  whom  they  are  hated. 

V.  But  it  will  be  said,  is  it  not  a  principle  of  the  law  of  na- 
ture, that  all  conventions  and  treaties,  extorted  by  injustice  and 
violence,  are  void  of  themselves ;  and  consequently,  that  he, 
who  has  been  forced  to  make  them  against  his  will,  may  law- 
fully break  his  word,  if  he  thinks  he  can  do  it  with  safety  ? 

Violence  and  force  are  the  characteristics  of  war  ;  and  it  is 
generally  the  conqueror,  that  obliges  the  vanquished  to  treat 
with  him,  and  by  the  superiority  of  his  arms,  constrains  them 
to  accept  the  conditions  lie  proposes  to  them,  whether  the  war 
he  has  undertaken  be  just  or  not.  How  then  is  it  possible, 
that  the  law  of  nature  and  nations  should  declare  treaties,  made 
in  those  circumstances,  to  be  sacred  and  inviolable  ? 

I  answer,  that  however  true  the  principle,  on  which  this  ob- 
jection is  founded,  may  be  in  itself,  yet  we  cannot  apply  it,  in 
all  its  extent,  to  the  present  question. 

*  Est  etiamjut  bdlkum  ;  jidesque  jurisjurandi  s*j>e  cum  brfle  servanda.     Off.  lib.  iv 
cap.  29. 


228  THE  PRINCIPLES  OF 

The  common  interest  of  mankind  requires,  that  we  should 
rnake  some  difference  between  promises,  extorted  by  fear,  a- 
mong  private  persons,  and  those,  to  which  a  sovereign  prince 
or  people  is  constrained,  by  the  superiority  of  the  arms  of  a 
conqueror,  whose  pretensions  were  unjust.  The  law  of  na- 
tions then  makes  an  exception  here  to  the  general  rule  of  the 
law  of  nature,  which  disannuls  conventions,  extorted  by  unjust 
fear ;  or,  in  other  words,  the  law  of  nations  holds  for  just  on 
both  sides  that  dread  or  apprehension,  which  induces  enemies 
to  treat  with  each  other,  during  the  course  of  a  war ;  for  oth- 
erwise, there  would  be  no  melhod,  either  of  moderating  its  fury, 
or  of  putcing  a  final  period  to  it,  as  we  have  already  demon- 
strated. 

VI.  But,  that  nothing  may  be  omitted,  relating  to  this  ques- 
tion, we  shall  add  something  for  the  further  illustration  of  what 
we  have  been  saying. 

First  then,  it  is  necessary  I  think  to  distinguish  here,  wheth- 
er he,  who  by  the  superiority  of  his  arms  has  compelled  his  en- 
emy to  treat  with  him,  had  undertaken  the  war  without  reason  ; 
or  whether  he  could  alledge  some  specious  pretext  for  it.  If 
the  conqueror  had  undertaken  the  war  for  some  plausible  rea- 
son, though  perhaps  unjust  at  bottom,  then  it  is  certainly  the 
interest  of  mankind,  that  the  law  of  nations  should  make  us  re- 
gard the  treaties,  concluded  in  such  circumstances,  as  valid  and 
obligatory  ;  so  that  the  conquered  cannot  refuse  to  observe 
them  under  a  pretext,  that  they  were  extorted  by  an  unjust 
fear. 

But  if  we  suppose,  that  the  war  was  undertaken  without  rea- 
son, or  if  the  motive  alledged  be  manifestly  frivolous  or  unjust., 
as  Alexander's  going  to  subdue  remote  natrons,  who  had  never 
heard  of  him,  &c.  as  such  a  war  is  a  down  right  robbery,  I  con- 
fess I  do  not  think  the  vanquished  more  obliged  to  observe  the 
treaty,  to  which  they  were  compelled,  than  a  man,  fallen  into 
the  hands  of  theives,  is  bound  to  pay  a  sum  of  money, 
which  he  had  promised  them,  as  a  ransom  for  his  life  or  lib- 
erty. 

VII.  We  must  also  add,  as  a  very  necessary  remark,  that  even 
supposing   the  war  was  undertaken  for  some  apparent  and  rea- 


POLITIC  LAW.  229 

sonable  cause,  if  the  treaty,  which  the  conqueror  imposes  on  the 
vanquished,  includes  some  condition  manifestly  barbarous,  and 
entirely  contrary  to  humanity ;  we  cannot,  in  those  circumstanc- 
es, deny  the  vanquished  a  right  of  receding  from  their  engage- 
ment, and  of  beginning  the  war  afresh,  in  order  to  free  themselves, 
if  they  can,  from  the  hard  and  inhuman  conditions,  to  which 
they  were  subjected,  by  the  abuse  their  enemy  made  of  his  vic- 
tory, contrary  to  the  laws  of  humanity.  The  justest  war  does 
not  authorize  the  conqueror  to  keep  no  measures,  or  to  use  all 
liberties  with  respect  to  the  vanquished  •,  and  he  cannot  reason- 
ably complain  of  the  breaking  of  a  treaty,  the  conditions  of  which 
are  both  unjust  in  themselves,  and  full  of  barbarity  and  cruelty. 

VIII.  The  Roman  history  furnishes  us  with  an  example  to 
this  purpose,  which  deserves  our  notice. 

The  Privernates  had  been  several  times  subdued  by  the  Ro- 
mans, and  as  often  revoked  ;  but  their  city  was  at  last  retaken 
by  the  consul  Plautius.  In  these  distressed  circumstances, 
they  sent  ambassadors  to  Rome  to  sue  for  peace.  Upon  a  sen- 
ator's asking  them  what  punishment  they  thought  they  deserv- 
ed •,  one  of  them  answered,  that,  which  is  due  to  men,  who  think 
themselves  worthy  of  liberty.  Then  the  counsel  asked  them, 
whether  there  was  any  room  to  hope,  that  they  would  observe 
the  peace,  if  their  faults  were  pardoned  ?  "  The  peace  shall  be 
"  perpetual  between  us,  replied  the  ambassador,  and  we  shall 
"  faithfully  observe  it,  if  the  conditions  you  lay  upon  us  are  just 
"  and  reasonable  ;  but  if  they  are  hard  and  dishonorable,  the 
"  peace  will  not  be  of  long  continuance,  and  we  shall  very  soon 
"  break  it." 

Though  some  of  the  senators  were  offended  at  this  answer, 
yet  most  of  them  approved  of  it,  and  said,  that  it  was  worthy  of 
a  man,  and  of  a  man,  who  was  born  free  ;  acknowledging  there- 
fore the  rights  of  human  nature,  they  cried  out,  that  those  alone 
deserved  to  be  citizens  of  Rome,  who  esteemed  nothing  in  com- 
parison of  liberty.  Thus  the  very  persons,  who  were  at  first 
threatened  with  punishment,  were  admitted  to  the  privilege  of 
citizens,  and  obtained  the  conditions  they  wanted  ;  and  the  gen- 
erous refusal  of  the  Privernates  to  comply  with  the  terms  of  a 
dishonorable  treaty  gained  them  the  honor  of  being  incorporate 


230 


THE  PRINCIPLES  OF 


ed  into  a  state,  which  at  that  time  could  boast  of  the  bravest,  and 
most  virtuous  subjects  in  the  universe.* 

Let  us  therefore  conclude,  that  a  due  medium  is  to  be  observ- 
ed; that  we  ought  inviolably  to  observe  treaties  made  with  an 
enemy,  and  that  no  exception  of  an  unjust  fear  should  authorise 
us  to  break  our  promise,  unless  the  war  was  a  downright  rob- 
bery, or  the  conditions  imposed  on  us  were  highly  unjust,  and 
full  of  barbarity  and  cruelty. 

IX.  There  is  still  another  case,  in  which  we  may  avoid  the 
crime  of  perfidiousness,  and  yet  not  perform  what  we  have 
promised  to  an  enemy  j  which  is,  when  a  certain  condition,  sup- 
posed to  be  the  basis  of  the  engagement,  is  wanting.  This 
is  a  consequence  of  the  very  nature  of  compacts ;  by  this  prin- 
ciple, the  infidelity  of  one  of  the  contracting  parties  sets  the  oth- 
er at  liberty  ;  for,  according  to  the  common  rule,  all  the  articles 
of  the  same  agreement  are  included  one  in  the  other,  in  the 
manner  of  a  condition,  as  if  a  person  were  expressly  to  say,  / 
•will  do  such  or  such  a  thing,  provided  you  do  so  or  so.\ 

CHAP.  XI. 

Of  compacts  with  an  enemy,  which  do  not  put  an  end  to 
the  war. 


lA: 


.MONG  those  compacts,  which  leave  us  in  a  state  of 
war,  one  of  the  principal  is  a  truce. 

A  truce  is    an    agreement,  by  which  we  engage  to  forbear 
all  acts  of  hostility  for  some  time,  the  war  still  continuing. 

II.  A  truce  is  not  therefore  a  peace,  for  the  war  continues. 
But  if  we  agree,  for  instance,  to  certain  contributions  during 
the  war,  as  these  are  granted  only  to  prevent  acts  of  hostility, 
they  ought  to  cease  during  the  truce  ;  since,  at  that  time, 
such  acts  are  not  lawful.  And  on  the  contrary,  if  it  be  agreed, 
that  any  particular  thing  is  to  take  place  in  time  of  peace,  the 
time  of  truce  is  not  included. 

III.  As  every  truce  leaves  us  in  a  state  of  war,  it  follows, 
that  after  the  term  is  expired,  there   is  no  necessity  that  war 

•  Livy  lib.  vili,  cap.  xx,  xxi. 
■f  See  above. 


POLITIC  LAW.  231 

should  be  declared  again ;    because  we  do  not  commence  a  new- 
war,  but  only  continue  that,  in  which  we  were  already  engaged. 

IV.  This  principle,  that  the  war  renewed  after  a  truce  is 
not  a  new  war,  may  be  applied  to  several  other  cases.  In  a 
treaty  of  peace,  concluded  between  the  bishop  of  Trent  and  the 
Venetians  it  was  agreed,  that  each  party  should  be  put  in  posses- 
sion of  what  they  enjoyed  before  the  last  war. 

In  the  beginning  of  this  war  the  bishop  had  taken  the  castle 
from  the  Venetians,  which  they  afterwards  retook.  The  bishop 
refused  to  give  it  up,  under  a  pretext  that  it  had  been  retaken 
after  several  truces,  which  had  been  made  during  the  course  of 
that  war.  The  dispute  was  evidently  to  be  decided  in  favor 
of  the  Venetians. 

V.  There  are  truces  of  several  kinds. 

1.  Sometimes,  during  the  truces,  the  armies  on  both  sides 
are  in  the  field,  and  in  motion  ;  and  these  are  generally  limit- 
ed to  a  few  days.  At  other  times  the  parties  lay  down  their 
arms,  and  retire  to  their  own  countries  ;  and  in  this  case  the 
truces  are  of  longer  duration. 

2.  There  is  a  general  truce  for  all  the  territories  and  domin- 
ions of  both  parties  ;  and  a  particular  truce  restrained  to  partic- 
ular places  ;   as  for  example,  by  sea,  and  not  by  land  &c. 

3.  Lastly  there  is  an  absolute,   indeterminate,   and   general  - 
truce,  and  a   truce  limited  and   determined  to  certain  things  5 
for  example  to  bury  the  dead,  or,  if  a  besieged  town  has  ob- 
tained a  truce  only  to  be  sheltered  from  certain  attacks,  or  from 
particular  acts  of  hostility,  such  as  ravaging  the  country. 

VI.  We  must  also  observe,  that,  strictly  speaking,  a  truce 
can  be  made  only  by  express  agreement ;  and  that  it  is  very 
difficult  to  establish  a  treaty  of  this  kind  on  the  footing  of  a 
tacit  convention,  unless  the  facts  are  such  in  themselves,  and 
in  their  circumstances,  that  they  can  be  referred  to  no  other 
principle,  than  to  a  sincere  design  of  suspending  acts  of  hos- 
tility for  a  time. 

Thus,  though  for  a  time  we  abstain  from  acts  of  hostility, 
the  enemy  cannot  from  that  alone  conclude,  that  we  have  con- 
sented to  a  truce. 

VII.  The  nature  of  a  truce  sufficiently  shows  what  the  ef- 
fects of  it  are. 


332  THE  PRINCIPLES  OF 

1.  If  the  truce  be  general  and  absolute,  all  acts  of  hostility 
ought,  generally  speaking,  to  cease,  both  with  respect  to  per- 
sons and  things ;  but  this  should  not  hinder  us,  during  the 
truce,  to  raise  new  troops,  erect  magazines,  repair  fortifications, 
&c.  unless  there  be  some  formal  convention  to  the  contrary ; 
for  these  are  not  in  themselves  acts  of  hostility,  but  defensive 
precautions,  which  may  be  taken  in  time  of  peace. 

2.  It  is  a  violation  of  the  truce  to  seize  on  any  place,  pos- 
sessed by  the  enemy,  by  corrupting  the  garrison.  It  is  also 
evident,  that  we  cannot  justly,  during  a  truce,  take  possession 
of  places  deserted  by  the  enemy,  but  really  belonging  to  him, 
whether  the  garrison  were  withdrawn  before  or  after  the 
truce. 

3.  In  consequence  hereof,  we  must  restore  those  things  be- 
longing to  the  enemy,  which  during  the  truce  have  accidentally 
fallen  into  our  hands,  even  though  they  had  been  formerly  our 
property. 

4.  During  a  truce,  it  is  allowed  to  pass  and  repass  from  one 
place  to  another,  but  without  any  train  or  attendance,  that  may 
give  umbrage. 

VIII.  And  here  it  may  be  asked,  whether  they  who,  by  any 
unexpected  and  inevitable  accident,  are  found  unfortunately  in 
the  enemy's  country,  at  the  expiration  of  a  truce,  can  be  de- 
tained prisoners,  or  ought  to  have  the  liberty  of  retiring  ?  Gro- 
tius  and  PufFendorf  maintain,  that  by  the  right  of  war  we  may 
detain  them  as  prisoners  ;  but  Grotius  adds,  that  it  is  certainly 
more  humane  and  generous,  not  to  insist  on  such  a  right.  I 
am  of  opinion,  that  it  is  the  consequence  of  a  treaty  of  truce, 
that  we  should  set  such  persons  at  liberty  ;  for  since,  in  virtue 
of  that  engagement,  we  are  obliged  to  grant  them  free  egress 
and  regress  during  the  time  of  the  truce  ;  we  ought  also  to 
grant  them  the  same  permission  after  the  truce  is  expired,  if  it 
appears  manifestly  that  a  superior  force,  or  an  unexpected  acci- 
dent, has  hindered  them  from  making  use  of  it  during  the  time 
agreed  upon.  Otherwise,  as  these  accidents  may  happen  every 
day,  such  a  permission  would  often  become  a  snare  to  make  a 
great  many  people  fall  into  the  hands  of  the  enemy.  Such  are 
the  principal  effects  of  an  absolute  and  general  truce. 


POLITIC  LAW. 


233 


IX.  With  regard  to  a  particular  truce,  determined  to  certain 
things,  its  effects  are  limited  by  the  particular  nature  of  the  agree- 
ment. 

i.  Thus,  if  a  truce  be  granted  only  for  burying  the  dead, 
we  ought  not  to  undertake  any  thing  new,  which  may  alter  our 
situation  ;  for  instance,  we  cannot,  during  that  time,  retire  in- 
to a  more  secure  post,  nor  intrench  ourselves,  &c.  for  he,  who 
has  granted  a  short  truce  for  the  interment  of  the  dead,  has 
granted  it  for  that  purpose  only,  and  there  is  no  reason  to  ex- 
tend it  beyond  the  case  agreed  on.  Hence  it  follows,  that  if 
he,  to  whom  such  a  truce  has  been  allowed,  should  take  advan- 
tage of  it  to  intrench  himself,  for  example,  or  for  some  other 
use,  the  other  party  would  have  a  right  to  prevent  him  by  force. 
The  former  could  not  complain  ;  for  it  never  could  be  reason- 
ably pretended,  that  a  truce,  which  was  allowed  for  the  inter- 
ment of  the  dead,  and  restrained  to  that  single  act,  gives  a  right 
to  undertake,  and  carry  on  any  other  thing  undisturbed.  The 
only  obligation  it  imposes  on  the  person,  who  has  granted  it,  is, 
not  forcibly  to  oppose  the  interment  of  the  dead  j  though 
Puffendorf  indeed  is  of  a  contrary  opinion.* 

2.  It  is  in  consequence  of  the  same  principles,  that  if  we 
suppose  that  by  the  truce  persons  only,  and  not  things,  are  pro- 
tected from  acts  of  hostility  ;  in  this  case,  if  in  order  to  de- 
fend our  goods  we  wound  any  person,  it  is  not  a  breach  of  the 
truce ;  for  when  the  security  of  persons,  on  both  sides  is  agreed 
on,  the  right  of  defending  against  pillage  is  also  reserved. 
And  hence  the  security  of  persons  is  not  general,  but  only  for 
those,  who  go  and  come  without  design  to  take  any  thing  from 
the  enemy,  with  whom  such  limited  truce  is  made. 

X.  Every  truce  obliges  the  contracting  parties  from  the  mo- 
ment the  agreement  is  concluded.  But  the  subjects  on  both 
sides  are  under  no  obligation  in  this  respect,  till  the  truce  has 
been  solemnly  notified.  Hence  it  follows,  that,  if  before  this 
notification  the  subjects  commit  any  acts  of  hostility,  or  do 
something  contrary  to  the  truce,  they  are  liable  to  no  punish- 
ment.    The  powers  however,  who  have   concluded  the  truce, 

> 
*  Ses  the  hw  of  nature  and  nations  bock5  via.  chap,  vil,  sect,  9, 

Ff 


^,34  THE  PRINCIPLES  OF 

ought  to  indemnify  those,  who  have   suffered  and  to   restore 
things,  as  much  as  possible,  to  their  former  state. 

XI.  Lastly  if  the  truce  should  happen  to  be  violated  on  one 
side,  the  other  is  certainly  at  liberty  to  proceed  to  act^  of  hos- 
tility, without  any  new  declaration.  Yet  when  it  is  agreed, 
that  he,  who  first  breaks  the  truce,  shall  pay  a  certain  fine,  if 
he  pays  the  fine,  or  suffers  the  penalty,  the  other  has  not  a  right 
to  begin  acts  of  hostility,  before  the  expiration  of  the  term. 
But  besides  the  penalty  stipulated,  the  injured  party  has  a  right 
to  demand  an  indemnification  of  what  he  has  suffered  by  the 
violation  of  the  truce.  It  is  to  be  observed  however,  that  the 
actions  of  private  persons  do  not  break  a  truce,  unless  the  sov- 
ereign has  some  hand  in  them,  either  by  order,  or  by  approba- 
tion ;  and  he  is  supposed  to  approve  what  has  been  done,  if  he 
will  neither  punish,  nor  deliver  up  the  offender,  or  if  he  refus- 
es to  restore  the  things  taken  during  the  cessation  of  arms. 

XII.  Safe  conducts  are  also  compacts  made  between  ene- 
mies, and  deserve  to  be  considered.  By  a  safe  conduct  we  un- 
derstand a  privilege,  granted  to  some  persons  of  the  enemy's 
party,  without  a  cessation  of  arms  ;  by  which  he  has  free  pas- 
sage and  return,  and  is  in  no  danger  of  being  molested. 

XIII.  The  several  questions  relating  to  safe  conduct  may  be 
decided,  either  by  the  nature  of  the  privilege  granted,  or  by 
the  general  rules  of  right  interpretation. 

i.  A  safe  conduct  granted  to  soldiers  extends  not  only  to 
inferior  officers,  but  also  to  those,  who  command  in  chief ;  be- 
cause the  natural  and  ordinary  use  of  the  word  has  determined 
it  so. 

2.  If  leave  be  given  to  go  to  a  certain  part,  it  implies  one 
also  to  return,  otherwise  the  former  permission  would  be  often 
useless*  There  may  however  be  cases,  in  which  the  one  does 
not  imply  the  other. 

3.  He,  who  has  had  leave  to  come,  has  not,  generally  speak- 
ing, liberty  to  send  another  in  his  place  ;  and,  on  the  contrary, 
he,  who  has  had  a  permision  to  send  another  person,  cannot 
eome  himself  ;  because  these  are  two  different  things,  and  the 
permission  ought  to  be  naturally  restrained  to  the  person  him- 
self, to  whom  it  was  granted  *,  for  perhaps  it  would  not  have 
been  given  to  another. 


POLITIC  LAW.  t$$ 

4.  A  father,  who  has  obtained  a  passport,  cannot  take  hi* 
son  with  him,  nor  a  husband  his  wife. 

5.  As  to  servants,  though  not  mentioned,  it  must  be  pre* 
sumed  allowable  to  take  one  or  two,  or  even  more,  according 
to  the  quality  of  the  person. 

6.  In  a  duoious  case,  and  generally  speaking,  licence  to  pass 
freely  does  not  cease  by  the  death  of  him,  who  has  granted  it  j 
the  successor  however  may  for  good  reasons  revoke  it ;  but  in 
such  a  case  the  person,  to  waom  the  passport  has  been  granted 
ought  to  have  notice  given  hiin,  and  the  necessary  time  allowed 
him  for  betaking  himsalf  to  a  place  of  safety. 

7.  A  safe  conduct,  granted  during  pleasure,  imports  of  itself 
a  continuation  of  safe  conduct,  till  expressly  revoked  ;  for  oth- 
erwise the  will  is  supposed  to  subsist  still  the  same,  whatever 
time  may  be  elapsed  ;  but  such  a  safe  conduct  expires,  if  the 
person,  who  has  given  it,  is  no  longer  in  the  employment,  in 
virtue  of  which  he  was  empowered  to  grant  such  security. 

XIV.  The  redemption  of  captives  is  also  a  compact  often 
made,  without  putting  an  end  to  the  war.  The  antient  Ro- 
mans were  very  backward  in  the  ransoming  of  prisoners* 
Their  practice  was  to  examine  whether  those,  who  were  taken 
by  the  enemy,  had  observed  the  laws  of  military  disipline,  and 
consequently,  whether  they  deserved  to  be  ransomed.  But 
the  side  of  rigour  generally  prevailed,  as  most  advantageous  to 
the  republic. 

XV.  Yet  in  general  it  is  more  agreeable,  both  (o  the  good 
of  the  state  and  to  humanity,  to  ransom  prisoners  unless  experi- 
ence convinces  us,  that  it  is  necessary  to  use  that  severity  to- 
wards them,  in  order  to  prevent  or  redress  greater  evils,  which 
would  otherwise  be  unavoidable. 

XVI.  An  agreement  made  for  the  ransom  of  a  prisoner 
cannot  be  revoked,  under  a  pretext,  that  he  is  found  to  be 
much  richer  than  we  imagined  ;  for  this  circumstance,  of  the 
prisoner's  being  more  or  less  rich,  has  no  relation  to  the  engage- 
ment ;  so  that  if  his  ransom  were  to  be  settled  by  his  worthy 
that  condition  should  have  been  specified  in  the  contract. 

XVII.  As  prisoners  of  war  are  not  now  mae'e  slaves,  the  cap- 
tor has   a  right  tojiothing,  but  what  he  actually  takes  ;  hence* 


236  THE  PRINCIPLES  OF 

money,  or  other  things,  which  a  prisoner  has  found  means  to 
conceal,  certainly  remain  his  property,  and  he  may  consequent-* 
ly  make  use  of  them  to  pay  his  ransom.  The  enemy  cannot 
take  possession  of  what  they  know  nothing  of ;  and  the  prisoner 
lies  under  no  obligation  to  make    a  discovery  of  all  his  effects. 

XVIII.  There  is  also  another  question,  whether  the  heir  of 
a  prisoner  of  war  is  obliged  to  pay  the  ransom,  which  the  de- 
ceased had  agreed  upon  ?  The  answer  is  easy,  in  my  opinion. 
If  the  prisoner  died  in  captivity,  the  heir  owes  nothing,  for  the 
promise  of  the  deceased  was  made  upon  condition,  that  he 
should  be  set  at  liberty  ;  but  if  he  was  set  at  liberty  before 
he  died,  the  heir  is  certainly  chargeable  with  the  ransom. 

XIX.  One  question  more  is  whether  a  prisoner,  who  was  re- 
leased on  condition  of  releasing  another,  is  obliged  to  return 
to  prison,  if  the  other  dies  before  he  has  obtained  his  release* 
ment  ?  I  answer,  that  the  released  prisoner  is  not  oblige l-  to 
return  into  custody,  for  that  was  not  stipulated  in  the  agree- 
ment ;  neither  is  it  just  that  he  should  enjoy  his  liberty  for 
nothing.  He  must  therefore  give  an  indemnification,  or  pay 
the  full  value  of  what  he  could  not  perform. 

CHAP.  XII. 

Of  compacts  made  during  the  war,  by  subordinate  powers,  as  gen- 
rals  of  armies,  or  other  commanders. 

I.  JLjLLL,  that  has  been  hitherto  said,  concerning  com- 
pacts between  enemies,  relates  to  those  made  by  sovereign 
powers.  But  since  princes  do  not  always  conclude  such  agree- 
ments themselves,  we  must  now  inquire  into  treaties  made  by 
generals,  or  other  inferior  commanders. 

II.  In  order  to  know  whether  these  engagements  oblige  the 
sovereign,  the  following  principles  will  directs  us. 

1.  Since  every  person  may  enter  into  an  engagement,  either 
by  himself  or  by  another,  it  is  plain  that  the  sovereign  is  bound 
by  the  compacts  made  by  his  ministers  or  officers,  in  consequence 
of  the  full  powers  and  orders  expressly  given  them. 

2.  He,  who  gives  a  man  a  certain  power,  is  reasonably  sup- 

f 


POLITIC  LAW.  237 

posed  to  have  given  him  whatever  is  a  necessary  consequence 
and  appendage  of  that  power,  and  without  which  it  cannot  hft- 
exercised.  But  he  is  not  supposed  to  have  granted  him  any 
thing  further. 

3.  If  he,  who  has  had  a  commission  to  treat,  has  kept  within 
the  bounds  of  the  power  annexed  to  his  office,  though  he  acts 
contrary  to  his  private  instructions,  the  sovereign  is  to  abide  by 
what  he  has  done  5  otherwise  we  could  never  depend  on  en- 
gagements contracted  by  proxy. 

4.  A  prince  is  also  obliged  by  the  act  of  his  ministers  and 
officers,  though  done  without  his  orders,  if  he  has  ratified  the 
engagements  they  have  made,  either  by  an  express  consent,  and 
then  there  is  no  difficulty,  or  in  a  tacit  manner  ;  that  is  to  say, 
if,  being  informed  of  what  has  passed,  he  yet  permits  thing9 
to  be  done,  or  does  them  himself,  which  cannot  be  reasonably 
referred  to  any  other  cause,  than  the  intention  of  executing  the 
engag .  ment  of  his  ministers,  though  contracted  without  his 
participation. 

5.  The  sovereign  may  also  be  obliged  to  execute  the  engage- 
ments contracted  by  his  ministers  without  his  orders,  by  the 
law  of  nature,  which  forbids  us  to  enrich  ourselves  at  another's 
expense.  Equity  requires,  that  in  such  circumstances  we  should 
exactly  observe  the  conditions  of  the  contract,  though  conclud- 
ed by  ministers,  who  had  not  full  powers. 

6.  These  are  the  general  principles  of  natural  equity,  in  vir- 
tue of  which  sovereigns  may  be  more  or  less  obliged  to  stand 
to  the  agreement  of  their  ministers.  But  to  what  has  been 
said,  we  must  add  this  general  exception,  unless  the  laws  and 
customs  of  the  country  have  regulated  it  otherwise,  and  these 
be  sufficiently  known  to  the  persons,  with  whom  the  agreement 
is  made. 

7.  Lastly,  if  a  public  minister  exceeds  his  commission,  so 
that  he  cannot  perform  what  he  has  promised,  and  his  master 
is  not  obliged  to  it,  he  himself  is  certainly  bound  to  indemnify 
the  person,  with  whom  he  has  treated.  But  if  there  should 
be  any  deceit  on  his  part,  he  may  be  punished  for  it,  and  hi?; 
person,  or  his  goods,  or  both  are  liable  to  he  seized,  in  order  tft 
rtiake  a  recompense, 


238  THE  PRINCIPLES  OF 

III.  Let  us  apply  these  general  principles  to  particular  ex» 
amples. 

1.  A  commander  in  chief  cannot  enter  into  a  treaty,  that 
regards  the  causes  and  consequences  of  the  war  ;  for  the  pow- 
er of  making  war,  in  whatever  extent  it  has  been  given,  does 
not  imply  the  power  of  finishing  it. 

2.  Neither  does  it  belong  to  generals  to  grant  truces  for  a 
considerable  space  of  time  ;  for  1.  that  does  not  necessarily  de- 
pend on  their  commission.  2.  The  thing  is  of  too  great  conse- 
quence to  be  left  intirely  to  their  discretion.  3.  And  lastly 
circumstances  are  not  generally  so  pressing,  as  not  to  admit  of 
time  to  consult  the  sovereign  ;  which  a  general  ought  to  do, 
both  in  duty  and  prudence,  as  much  as  possible,  even  with  re- 
spect to  things,  which  he  has  a  power  to   transact  of  himself. 

Much  less  therefore  can  generals  conclude  those  kinds  of 
truces,  which  withdraw  all  the  appearance  of  war,  and  come 
very  near  a  real  peace. 

3.  With  respect  +0  truces  of  a  short  duration,  it  is  certainly 
in  the  power  oi  a  general  to  make  them  ;  for  example  to  bury 
the  dead,  &c. 

IV.  Lieutenant  generals,  or  even  inferior  commanders, 
jnay  also  make  particular  truces,  during  the  attack,  for  i  .stance, 
of  a  body  of  the  enemy  intrenched,  or  in  the  siege  of  a  town ; 
for  this  being  often  very  necessary,  it  is  reasonably  presumed, 
that  such  a  power  must  needs  be  included  in  the  extent  of  their 
commission. 

V.  But  a  question  here  arises,  whether  these  particular  tru- 
ces oblige  only  the  officers,  who  granted  them,  and  the  troops 
under  their  command,  or  whether  they  bind  the  other  officers, 
and  even  the  commander  in  chief  ?  Grotius  declares  for  the 
first  opinion,  though  the  second  appears  to  me  the  best  found- 
ed;  for  1.  since  we  suppose,  that  it  is  in  consequence  of  the 
tacit  consent  of  the  sovereign,  that  such  a  truce  has  been  grant- 
ed by  an  inferior  commander,  no  other  officer,  whether  equal  or 
superior,  can  break  the  agreement,  without  indirectly  wounding 
the  authority  of  the  soveregin. 

2.  Besides,  this  would  lay  a  foundation  for  fraud  and  dis- 
trusts, which  might  tend  to  render  the  use  of  truces,  so  neces- 
sary on  several  occasions,  useless  and  impracticable. 


POLITIC  LAW.  239 

VI.  It  does  not  belong  to  a  general  to  release  persons  taken 
in  war,  nor  to  dispose  of  conquered  sovereignties  and  lands. 

VII.  But  it  is  certainly  in  the  power  of  generals  to  grant, 
or  leave  things,  which  are  not  as  yet  actually  possessed ;  be- 
cause in  war  many  cities,  for  example,  and  often  men,  surren- 
der themselves,  upon  condition  of  preserving  their  lives  and 
liberties,  or  sometimes  their  goods  ;  concerning  which  the 
present  circumstances  do  not  commonly  al'ow  time  sufficient  to 
consult  the  sovereign.  Inferior  commanders  ought  also  to  have 
this  right,  concerning  things  within  the  extent  of  their  commis- 
sion. 

VIII.  In  fine,  by  the  principles  here  established,  we  may 
easily  judge  of  the  conduct  of  the  Roman  people,  with  res- 
pect to  Bituitus  king  of  the  Arverni,  and  to  the  affair  of  the 
Caudine  Forks. 

CHAP.  XIII. 

Of  compacts  made  with  an  enemy  by  private  persons. 

I.  AT  sometimes  happens  in  war,  that  private  persons, 
whether  soldiers  or  others,  make  compacts  with  an  enemy. 
Cicero  justly  remarks,  that,  if  a  private  person,  constrained  by 
necessity,  has  promised  any  thing  to  the  enemy,  he  ought  reli- 
giously to  keep  his  word.* 

II.  And  inded  all  the  principles  hitherto  established  mani- 
festly prove  the  justice  and  necessity  of  this  duty.  Besides, 
unless  this  be  allowed,  frequent  obstacles  would  be  put  to  lib- 
erty, and  an  occasion  given  for  massacres,    &c. 

III.  Bat,  though  these  compacts  are  valid  in  themselves,  yet 
it  is  evident,  that  no  private  person  has  a  right  to  alienate  pub- 
lic property  ;  for  this  is  not  allowed  even  to  generals  of  ar- 
mies. 

IV.  With  respect  to  the  actions  and  effects  of  each  individu- 
al, though  the  covenants  made  with  the  enemy  on  these  affairs 
may  sometimes  be  prejudicial  to  the  state,  they  are  binding  ne- 
vertheless.     Whatever   tends  to  avoid   a  greater    evil,  though 

*  Ds  Offic.  lib.  i.  cap.  1.  ii. 


24o  THE  PRINCIPLES  OF 

detrimental  in  itself,  ought  to  be  considered  as  a  public  good  j 
as  for  example,  when  we  promise  to  pay  certain  contributions  tb 
prevent  pillage,  Or  the  burning  of  places,  &c.  Even  the  laws 
of  the  state  cannot  without  injustice,  deprive  individuals  of  the1 
right  of  providing  for  their  own  safety,  by  imposing  too  burden- 
some an  obligation  on  the  subjects,  intirely  repugnant  to  nature 
and  reason. 

V.  It  is  in  consequence  of  these  principles,  that  we  think  a 
captive  bound  to  perform  the  promise  he  has  made  of  returning 
to  prison.  Without  this  he  would  not  be  suffered  to  go 
home  ,  and  it  is  certainly  better  for  him,  and  for  the  state, 
that  he  should  have  this  permission  for  a  time,  than  that  he  re- 
main always  in  captivity.  It  was  therefore  to  fulfil  his  duty, 
that  Regulus  returned  to  Carthage,  and  surrendered  himself  in- 
to the  hands  of  the  enemy.* 

VI.  We  must  judge,  in  like  manner,  of  the  promise,  by 
which  a  prisoner  engages  not  to  bear  arms  against  the  releaser.  Iri 
vain  would  it  be  objected,  that  such  an  engagement  is  contra- 
rv  to  the  duty,  we  owe  to  our  country.  It  is  no  way  contrary 
to  the  duty  of  a  good  citizen  to  procure  his  liberty  by  promis- 
ing to  forbear  a  thing,  which  it  is  in  the  enemy's  power  to  hin- 
der. His  country  loses  nothing  by  that,  but  rather  gains  ;  since 
a  prisoner  so  long  as  he  is  not  released,  is  as  useless  to  it,  as  if 
he  were  really  dead. 

VII.  If  a  prisoner  has  promised  not  to  make  his  escape,  he 
ought  certainly  to  keep  his  word ;  even  though  he  was  in  fet- 
ters when  he  made  it.  But  if  a  person  has  given  his  word, 
on  condition  that  he  should  not  be  confined  in  that  manner,  he 
may  break  it,  if  he  be  laid  in  irons. 

VIII.  But  here  some  will  ask,  whether  private  men,  upon  re- 
fusing to  perform  what  they  have  promised  to  the  enemy,  may 
be  compelled  to  it  by  the  sovereign  ?  I  answer,  certainly  ;  oth- 
erwise it  would  be  to  no  purpose,  that  they  were  bound  by  a 
promise,  if  no  one  could  compel  them  to  perform  it. 

*  Cicer.  de  Offic.  lib,  iii.  cap.  xxix. 


POLITIC  LAW.  '241 

CHAP.  XIV. 

Of  public  compacts,  which  put  an  end  to  icar. 

I.  vyOMPACTS,  which  put  an  end  to  Mar,  are  either 
principals  or  accessaries.  Principals  are  those,  which  termin- 
ate the  war,  either  by  themselves,  as  a  treaty  of  peace  ;  or  by 
a  consequence  of  what  has  been  agreed  upon,  as  when  the  end 
of  the  war  is  referred  to  the  decision  of  lot,  to  the  success  of  a 
combat,  or  to  the  judgment  of  an  arbitrator.  Accessaries  are 
such,  as  are  sometimes  joined  to  the  principal  compacts  in  or- 
der to  confirm  them,  and  to  render  the  execution  of  them 
more  certain.     Such  are  hostages,  pledges,  and  guarantees. 

II.  We  have  already  treated  of  single  combats  agreed  on  by 
both  parties,  and  of  arbitrators,  considered  as  means  of  hinder- 
ing or  terminating  a  war  ;  it  now  only  remains,  that  we  speak 
of  treaties  of  peace. 

III.  The  first  question,  which  presents  itself  on  this  subject 
is  whether  compacts,  which  terminate  a  war,  can  be  disannul- 
led by  the  exception  of  an  unjust  fear,  which  has  extorted 
them  ? 

After  the  principles  above  established  to  show,  that  we 
ought  to  keep  our  faith  given  to  an  enemy,  it  is  not  necessary 
to  prove  this  point  again.  Of  all  jmblic  conventions,  treaties  of 
peace  are  those,  which  a  nation  ought  to  look  upon,  as  most 
sacred  and  inviolable,  since  nothing  is  of  greater  importance  to 
the  repose  and  tranquility  of  mankind.  As  princes  and  na- 
tions have  no  common  judge  to  take  cognizance  of  their  differ- 
ences, and  to  decide  concerning  the  justice  of  a  war,  we  could 
never  depend  on  a  treaty  of  peace,  if  the  exception  of  an  un- 
just fear  was  in  this  case  to  be  generally  admitted.  I  say  ge- 
nerally, for  when  the  injustice  of  the  conditions  of  the  peace  is 
highly  evident,  and  the  unjust  conqueror  abuses  his  victory  so 
far,  as  to  impose  the  hardest,  crudest,  and  most  intolerable 
conditions  on  the  vanquished,  the  law  of  nations  cannot  autho- 
rise such  treaties,  nor  lay  an  obligation  on  the  vanquished  tame- 
Iv  to  submit  to  them.     Let  us  also  add,   that,   though  the  law 

Gg 


24S  THE  PRINCIPLES  OF 

of  nations  ordains,  that,  except  in  the  case  here  mentioned, 
treaties  of  peace  are  to  be  faithfully  observed,  and  cannot  be 
disannulled,  under  a  pretext  of  an  unjust  constraint ;  it  is  ne- 
vertheless certain,  that  the  conqueror  cannot  in  conscience  take 
the  advantage  of  such  a  treaty,  and  that  he  is  obliged  by  inter- 
nal justice,  to  restore  all  that  he  has  taken  in  an  unjust  war. 

IV.  Another  question  is,  whether  a  sovereign,  or  a  state,  is 
obliged  to  observe  treaties  of  peace,  which  they  have  made 
with  their  rebellious  subjects  ?  I  answer,  1.  that  when  a  sove- 
reign has  reduced  rebellious  subjects  by  force  of  arms,  he  may 
deal  with  them  as  he  sees  best.  2.  But  if  he  has  entered  into 
an  accommodation  with  them,  he  is  thereby  supposed  to  have 
pardoned  them  what  is  past  ;  so  that  be  cannot  lawfully  refuse 
to  keep  his  word,  under  a  pretext  that  he  has  given  it  to  rebel- 
lious subjects.  This  obligation  is  so  much  the  more  inviolable, 
as  princes  are  apt  to  give  the  name  of  rebellion  to  a  resistance, 
by  which  the  subject  only  maintains  his  just  rights,  and  opposes 
the  violation  of  the  most  essential  engagements  of  sovereigns. 
History  furnishes  but  too  many  examples  of  this  kind. 

V.  None  but  he,  who  has  the  power  of  making  war,  has  a 
right  to  terminate  it  by  a  treaty  of  peace.  In  a  word,  this  is 
an  essential  part  of  sovereignty.  But  can  a  king,  who  is  a  pri- 
soner, make  a  treaty  of  peace,  which  shall  be  valid,  and  binding 
to  a  nation  ?  I  think  not,  for  there  is  no  probability,  that  the 
people  would  have  conferred  the  supreme  power  upon  one, 
with  a  right  to  exercise  it,  even  in  matters  of  the  greatest  im- 
portance, at  a  time,  when  he  is  not  master  of  his  own  person. 
But  with  respect  to  contracts,  which  a  king,  though  a  prisoner, 
has  made  concerning  what  belongs  to  him  in  private,  they  are 
certainly  valid,  according  to  the  principles  established  in  the 
preceding  chapter.  But  what  shall  we  say  of  a  king,  who  is 
in  exile  ?  If  he  has  no  dependence  upon  any  person,  it  is  un- 
doubtedly in  his  power  to  make  peace. 

VI.  To  know  for  certainty  what  things  a  king  can  dispose 
of  by  a  treaty  of  peace,  we  need  only  consider  the  nature  of 
the  sovereignty,  and  the  manner  in  which  he  possesses  it. 

I.  In  patrimonial  kingdoms,  considered  in  themselves,  no- 
thing hinders  but  that  the  monarch  may  alienate  the  sovereign- 
ty, or  a  part  of  it. 


POLITIC  LAW.  243 

2.  But  princes,  who  hold  the  sovereignty  only  in  an  iinso- 
fructuary  manner,  cannot  by  any  treaty  alienate  it,  cither  in 
whole  or  in  part.  To  render  such  alienations  valid,  the  con- 
sent of  the  body  of  the  people,  or  of  the  states  of  the  kingdom, 
is  necessary. 

3.  With  respect  to  the  crown  domains,  or  the  goods  of  the 
king-dom,  it  is  not  generally  in  the  power  of  the  sovereign  to 
alienate  them. 

4.  With  regard  to  the  effects  of  private  subjects,  the  sove- 
reign, as  such,  has  a  transcendental  or  supereminent  right  over 
the  goods  and  fortunes  of  private  men  ;  consequently  lie  may 
give  tliem  up,  as  often  as  the  public  advantage  or  necessity  re- 
quires it  ;  but  with  this  consideration,  that  the  state  ought  to 
indemnify  the  subject  for  the  loss  he  has  sustained  beyond  his 
own  proportion. 

VII.  For  the  better  interpretation  of  the  articles  of  a  treaty 
of  peace,  we  need  only  attend  to  the  general  rules  of  interpre- 
tation, and  the  intention  of  the  contracting  parties. 

1.  In  all  the  treaties  of  peace,  if  there  be  no  clause  to  the 
contrary,  it  is  presumed  that  the  parties  hold  themselves  reci- 
procally discharged  from  all  damages,  occasioned  by  the  war. 
Hence  the  clauses  of  general  amnesty  are  only  for  the  greater 
precaution. 

2.  But  the  debts  between  individuals,  contracted  before  the 
war,  and  the  payment  of  which  could  not  be  exacted  during 
the  war,  aie  not  to  be  accounted  forgiven  by  the  treaty  of 
peace. 

3.  Unknown  injuries,  whether  committed  before  or  during 
the  war,  are  supposed  to  be  comprehended  in  the  general 
terms,  by  which  we  forgive  the  enemy  the  evil  he  has  done  (is. 

4.  Whatever  has  been  taken  since  the  conclusion  of  the 
peace  must  certainly  be  restored. 

5.  If  the  time  be  limited,  in  which  the  conditions  of  peace 
are  to  be  performed,  it  must  be  interpreted  in  the  strictest 
sense  ;  so  that,  when  it  is  expired,  the  least  delay  is  inexcusa- 
ble, unless  it  proceeds  from  a  superior  force,  or  it  manifestly 
appears,  that  it  is  owing  to  no  bad  design. 

6.  It  is  lastly  to  be  observed,  that  every  treaty  of  peace  is  of 


244  THE  PRINCIPLES  OF 

itself  perpetual,  and  as  it  were  eternal  in  its  nature  ;  that  is  to 
say,  the  parties  are  supposed  to  have  agreed  never  to  take  up 
arms,  on  account  of  the  differences,  which  occasioned  the  war, 
and  for  the  future  to  look  upon  them  as  entirely  at  an  end. 

VIII.  It  is  also  important  to  know,  when  a  peace  may  he 
looked  upon  as  broken  ? 

1.  Some  distinguish  between  breaking  a  peace  and  givitig  a 
new  occasion  of  war.  To  break  a  peace  is  to  violate  an  article 
of  the  treaty;  but  to  give  a  new  occasion  of  war  is  to  take  up 
arms  for  a  new  reason  not  mentioned  in  the  treaty. 

2.  But  when  we  give  a  new  occasion  of  war  in  this  manner, 
the  treaty  is  by  such  means  indirectly  broken,  if  we  refuse 
to  make  satisfaction  for  the  offence  ;  for  then  the  offended  hav- 
ing a  right  to  take  up  arms,  and  to  treat  the  offender  as  an  ene- 
my, against  whom  every  thing  is  lawful,  he  must  also  certain- 
ly dispense  with  observing  the  conditions  of  the  peace,  though 
the  treaty  has  not  been  formally  broken  with  respect  to  its 
tenor.  Besides,  this  distinction  cannot  be  much  used  at  present ; 
because  treaties  of  peace  are  conceived  in  such  a  manner,  as  to 
include  an  engagement  to  live  for  the  future  in  good  friendship, 
in  all  respects.  We  must  therefore  conclude,  that  every  new 
act  of  unjust  hostility  is  an  infringement  of  the  peace. 

3.  As  to  those,  who  only  repel  force  by  force,  they  by  no 
means  break  the  peace. 

4.  When  a  peace  is  concluded  with  several  allies  of  him, 
with  whom  the  treaty  has  been  made,  the  peace  is  not  broken, 
if  one  of  those  allies  takes  up  arms,  unless  it  has  been  conclu- 
ded on  that  fooling.  But  this  is  what  cannot  be  presumed, 
and  certainly  they,  who  thus  invade  us  without  the  assistance 
of  others,  shall  be  considered  as  the  breakers  of  the  peace. 

5.  Acts  of  violence  or  hostility,  which  some  subjects  may 
commit  of  their  own  accord,  cannot  break  the  peace,  except 
we  suppose,  that  the  sovereign  approves  them  ;  and  this  is 
presumed,  if  he  knows  the  fact,  has  power  to  punish  it,  and 
neglects  to  do  so. 

1.  The  peace  is  supposed  to  be  broken,  when,  without  a  law- 
ful reason,  acts  of  hostility  are  committed,  not  only  against  the 
whole  body  of  the  state,  but  also  against  private  persons  ;  for 


POLITIC  LAW.  g£5 

the  end  of  a  treaty  of  peace  is,   that  every  subject  should,   for 
the  future,  live  in  perfect  security. 

2.  The  peace  is  certainly  broken  by  a  contravention  to  the 
clear  and  express  articles  of  the  treaty.  Some  civilians  however 
distinguish  between  the  articles  of  great  importance,  and  those 
of  small  importance.  But  this  distinction  is  not  only  uncertain  in 
itself,  but  also  very  difficult  and  delicate  in  its  application.  In 
general,  all  the  articles  of  a  treaty  ought  to  be  looked  upon  as 
important  enough  to  be  observed.  We  must  however  pay  some 
regard  to  what  is  required  by  humanity,  and  rather  pardon 
slight  faults,  than  pursue  the  reparation  of  them  by  arms. 

8.  If  one  of  the  parties  is,  by  an  absolute  necessity,  reduced 
to  an  impossibility  of  performing  his  engagements,  we  are  not 
for  that  to  look  upon  the  peace  as  broken  ;  but  the  other  party 
ought  either  to  wait  some  time  for  the  performance  of  what 
has  been  promised,  if  there  be  still  any  hope  of  it,  or  he  may 
demand  a  reasonable  equivalent. 

9.  Even  when  there  is  treachery  on  one  side,  it  is  certainly 
at  the  choice  of  the  innocent  party  to  let  the  peace  subsist ;  and 
it  would  be  ridiculous  to  pretend,  that  he,  who  first  infringes 
the  peace,  can  disengage  himself  from  the  obligation,  which 
he  lay  under,  by  acting  contrary  to  that  very  obligation. 

IX.  To  treaties  of  peace,  for  the  security  of  their  execution, 
are  sometimes  joined  hostages,  pledges,  and  guarantees.  Hos- 
tages are  of  several  sorts  ;  for  they  either  give  themselves  vo- 
luntarily, or  are  given  by  order  of  the  sovereign,  or  they  are 
forcibly  taken  by  the  enemy.  Nothing,  for  instance,  is  at  pre- 
sent more  common,  than  to  carry  off  hostages  for  the  security 
of  contributions. 

X.  The  sovereign  may,  in  virtue  of  his  authority,  oblige  some 
of  his  subjects  to  put.  themselves  into  the  hands  of  the  enemy 
as  hostages  ;  for  if  he  has  a  right,  when  necessity  requires  it. 
to  expose  them  to  the  danger  of  their  lives,  much  more  may  he 
engage  their  corporeal  liberty.  But  on  the  other  hand,  the 
state  ought  certainly  to  indemnify  the  hostages  for  the  losses 
they  may  have  sustained  for  the  good  of  the  society. 

XI.  Hostages  are  demanded,  and  given,  for  the  security  of 
the  execution  of  some  engagement ;  therefore  it  is  necessary,  that 


24(5  THE  PRINCIPLES  OP 

they  should  he  retained,  in  such  a  manner  as  shall  he  judged 
proper,  till  the  performance  of  what  has  heen  agreed  on.  Hence 
it  follows  that  an  hostage,  who  has  made  himself  such  volunta- 
rily, or  he,  who  has  heen  given  by  the  sovereign,  cannot  malic  his 
escape.  Grotius  however  grants  this  liberty  to  the  latter  ;  hut 
his  opinion  does  not  seem  to  be  well  founded  ;  for  either  it  was 
the  intention  of  the  state,  that  the  hostage  should  not  remain  in 
the  hands  of  th'e  enemy  ;  or  the  state  had  not  the  power  of  obli- 
ging the  hostage  to  remain.  The  former  is  manifestly  false,  for 
otherwise  the  hostage  could  be  no  security,  and  vhe  convention 
would  be  illusive.  Nor  is  the  latter  more  true  ;  for  if  the 
prince,  in  virtue  of  his  transcendental  property,  can  expose  the 
lives  of  the  citizens,  why  may  he  not  engage  their  liberty  ? 
Thus  Grotius  himself  agrees,  that  the  Romans  were  obliged 
to  return  Clelia  to  Porsenua.  But  the  case  is  not  precisely  the 
same  with  respect  to  hostages,  taken  by  the  enemy  ;  for  these 
have  a  right  to  make  their  escape,  so  long  as  they  have  not 
given  their  word  to  the  contrary. 

XII.  It  is  a  question  often  controverted,  whether  he,  to  whom 
hostages  are  given  can  put  them  to  death,  in  case  the  enemy  do 
not  perform  their  engagement  1  I  answer,  that  hostages  them- 
selves cannot  give  the  enemy  any  power  over  their  lives,  of 
which  they  are  not  master.  As  to  the  state,  it  has  certainly 
the  power  of  exposing  the  lives  of  the  subjects,  when  the  pub- 
lic good  requires  it.  But  in  this  case  all,  that  the  public  good 
requires,  is  to  engage  the  corporeal  liberty  of  the  hostages  ;  and 
they  can  no  more  be  rendered  responsible,  at  the  peril  of  their 
lives,  for  the  infidelity  of  the  sovereign,  than  an  innocent  per- 
son can  be  treated  as  a  criminal.  Thus  the  state  by  no  means 
engages  the  lives  of  hostages.  He,  to  whom  they  are  given,  is 
supposed  to  receive  them  on  these  conditions  ;  and  though  by 
the  violation  of  the  treaty  they  are  at  his  mercy,  it  does  not  fol- 
low that  he  has  a  right  to  put  them  to  death  ;  he  can  only  re- 
tain them  as  prisoners  of  war. 

XIII.  Hostages,  given  for  a  certain  purpose,  are  free  so  soon, 
as  that  purpose  is  answered,  and  consequently  cannot  be  detain- 
ed upon  any  other  account,  for  which  no  hostages  were  promi- 
sed.   But  if  we  have  broken  our  faith  in  any  other  case,  or  con- 


POLITIC  LAW.  247 

tracted  a  new  debt,  the  hostages  then  may  be  detained,  not  as 
hostages,  but  in  consequence  of  this  rule  of  the  law  of  nations, 
which  authorizes  us  to  detain  the  persons  of  subjects  for  the 
deeds  of  their  sovereigns. 

XIV.  The  query  is,  whether  a  hostage  is  at  liberty  by  the 
death  of  the  sovereign,  who  made  the  covenant  ?  This  depends 
on  the  nature  of  the  treaty,  for  the  security  of  which  the  hos- 
tage was  given  ;  that  is  to  say,  we  must  examine  whether  it  be 
personal  or  real. 

But  if  the  hostage  becomes  successor  to  the  prince,  who  gave 
him  up,  he  is  no  longer  obliged  to  be  detained  as  an  hostage, 
though  the  treaty  be  real  ;  he  ought  only  to  put  another  in  his 
place,  whenever  it  is  demanded.  This  case  is  supposed  to  be 
tacitly  excepted  ;  for  it  cannot  be  presumed,  that  a  prince  for 
example,  who  has  given  his  own  son  and  presumptive  heir  as  an 
hostage,  ever  intended,  that  in  case  he  should  die,  the  state 
should  be  without  its  chief. 

XV.  Sometimes  pledges  are  also  given  for  the  security  x)f  a 
treaty  of  peace  ;  and  as  we  have  said  that  hostages  may  be  de- 
tained for  other  debts,  this  may  also  be  applied  to  pledges. 

XVI.  Another  way  in  fine  of  securing  peace  is,  when  prin- 
ces or  states,  especially  those,  who  have  been  mediators  of  the 
peace,,  become  guarantees,  and  engage  their  faith,  that  the  ar- 
ticles shall  be  observed  on  both  sides  ;  which  engagement  of 
theirs  implies  an  obligation  of  interposing  their  good  offices,  to 
obtain  a  reasonable  satisfaction  to  the  party  injured  contrary  to 
treaty,  and  even  of  assisting  him  against  the  injurious  aggressor. 

CHAP.  XV. 

Of  the  right  of  ambassadors. 

I.  J.T  remains  now  for  us  to  say  something  of  ambassadors, 
and  of  the  privileges,  which  the  law  of  nations  grants  them. 
The  subject  naturally  leads  us  to  it,  since  it  is  by  means  of 
these  ministers,  that  treaties  are  generally  negociated  and  con- 
cluded. 

II.  Nothing  is  more  common  than  the  maxim,  which  esta- 


248  THE  PRINCIPLES  OF 

tab!ishes  that  the  persons  of  ambassadors  are  sacred  and  invio- 
lable, and  that  they  are  under  the  protection  of  the  law  of  na- 
tions. We  cannot  doubt  that  it  is  of  the  utmost  importance  to 
mankind  in  general,  and  to  nations  in  particular,  not  only  to  put 
an  end  to  wars  and  disputes,  but  also  to  establish  and  maintain 
commerce  and  friendship  with  each  other.  Now  as  ambassa- 
dors are  necessary  to  procure  these  advantages,  it  follows  that 
God,  who  certainly  commands  every  thing,  that  contributes  to 
the  preservation  and  happiness  of  society,  cannot  but  forbid 
the  doing  any  injury  to  those  persons  ;  but,  on  the  contrary,  he 
orders  that  we  should  grant  them  all  the  security  and  privileges, 
which  the  design  and  nature  of  their  employment  require. 

III.  Before  we  enter  into  the  application  of  the  privileges, 
which  the  law  of  nations  grants  to  ambassadors,  we  must  ob- 
serve with  Grotius,  that  they  belong  only  to  ambassadors  sent 
by  sovereign  powers  to  each  other.  For  as  to  deputies  sent  by 
cities  or  provinces  to  their  own  sovereigns,  it  is  not  by  the  law 
of  nations,  that  we  must  judge  of  their  privileges,  but  by  the 
civil  law  of  the  country.  In  a  word,  the  privileges  of  ambassa- 
dors regard  only  foreigners  ;  that  is  to  say  such,  as  have  no 
dependence  on  us. 

Nothing  then  hinders  an  inferior  ally  from  having  a  right  to 
send  ambassadors  to  a  superior  ally  ;  for  in  the  case  of  an  un- 
equal alliance,  the  inferior  does  not  cease  to  be  independent. 

It  is  a  question  whether  a  king,  vanquished  in  war,  and  stript 
of  his  kingdom,  has  aright  of  sending  ambassadors  '?  But  indeed 
this  question  is  useless  with  respect  to  the  conqueror,  who  will 
not  even  so  much  as  think,  whether  he  ought  to  receive  ambas- 
sadors from  a  person  whom  he  has  deprived  of  his  kingdom. 
With  regard  to  other  powers,  if  the  conqueror  has  entered  into 
the  war  for  reasons  manifestly  unjust,  they  ought  still  to  ac- 
knowledge that  person  for  the  true  king,  who  really  is  so,  so 
long  as  they  can  do  it  without  some  great  inconveuiency  ;  con- 
sequently they  cannot  refuse  to  receive  his  ambassadors. 

But  in  civil  wars  the  case  is  extraordinary  ;  for  then  neces- 
sity sometimes  makes  way  for  this  right,  so  as  to  receive  am- 
bassadors on  both  sides.  The  same  nation,  in  that  case,  is  for  a 
time  accounted  two  distinct  bodies  of  people.    But  pirates  and 


POLITIC  LAW.  249 

robbers,  that  do  not  constitute  a  settled  government,  can  have 
no  right  of  nations  belonging  to  them,  nor  consequently  that  of 
sending  ambassadors,  unless  they  have  obtained  jt  by  a  treaty, 
which  has  sometimes  happened. 

IV.  The  ancients  did  not  distinguish  different  sorts  of  per- 
sons sent  by  one  power  to  another  ;  the  Romans  called  them  all 
legati  or  oratores.  At  present  there  are  various  titles  given  to 
these  public  ministers.  But  the  employment  is  in  the  main  the 
same ;  and  the  several  distinctions  are  founded  rather  on  the 
greater  or  less  splendor,  with  which  they  support  their  dignity, 
and  on  the  greatness  or  smallness  of  their  salary,  than  on  any 
other  reason  derived  from  their  character. 

V.  The  most  common  distinction  of  ambassadors,  at  present, 
is  into  extraordinary  and  ordinary.  This  difference  was  entirely 
unkown  to  the  ancients.  With  them  all  ambassadors  were  ex- 
traordinary, that  is  to  say,  charged  with  only  a  particular  nego- 
tiation -,  whereas  the  ordinary  ambassadors  are  those,  who  reside 
among  foreign  nations,  to  transact  all  kinds  of  political  concerns, 
and  even  to  observe  what  passes  in  the  respective  courts. 

The  situation  of  things  in  Europe,  since  the  destruction  of 
the  Roman  empire,  the  different  sovereignties  and  republics,  that 
have  been  erected,  together  with  the  increase  of  trade,  have  ren- 
dered these  ordinary  ambassadors  necessary.  Hence  several 
historians  justly  observe,  that  the  Turks,  who  keep  no  ministers 
in  foreign  countries,  act  very  impoliticly ;  for  as  they  receive 
their  news  only  by  Jewish  or  Armenian  merchants,  they  do  not 
generally  hear  of  things  till  very  late,  or  their  informations  are 
bad,  which  often  makes  them  take  imprudent  measures. 

VI.  Grotius  observes,  that  there  are  two  principal  maxims 
of  the  law  of  nations,  concerning  ambassadors.  The  first,  that 
•rue  ought  to  admh  them  ;  the  second,  that  their  persons  are  sacred 
and  inviolable. 

VII.  With  regard  to  the  first  of  these  maxims,  we  must  ob- 
serve, that  the  obligation  of  admitting  ambassadors  is  founded 
in  general  on  the  principles  of  humanity;  for,  as  all  nations 
form  a  kind  of  society  among  themselves,  and  consequently 
ought  to  assist  each  other  by  a  mutual  intercourse  of  good  offi- 
ces, the  use  of  ambassadors  becomes  necessarv  between  them 

H  h 


-5o  THE  PRINCIPLES  OF 

for  that  very  reason.  It  is  therefore  a  rule  of  the  law  of  na- 
tions, that  we  ought  to  admit  ambassadors,  and  to  reject  nons 
without  a  just  cause. 

VIIL  But  though  we  are  obliged  to  admit  ambassadors,  it  is 
only  a  bare  duty  of  humanity,  which  produces  but  an  imperfect 
obligation.  So  that  a  simple  refusal  cannot  be  regarded  as  an 
injurious  act,  sufficient  to  lay  a  just  foundaion  for  a  war.  Be- 
sides, the  obligation  to  admit  ambassadors  regards  as  well  those, 
sent  to  us  by  an  enemy,  as  those  who  come  from  an  allied  power. 
It  is  the  duty  of  princes,  who  are  at  war,  to  seek  the  means  of  re- 
establishing a  just  and  reasonable  peace;  and  they  cannot  obtain  it, 
unless  they  are  disposed  to  listen  to  the  proposals,  that  may  be 
made  on  each  side ;  which  cannot  be  so  well  negociated,  as  by 
employing  ambassadors  or  ministers.  The  same  duty  of  hu- 
manity also  obliges  neutral,  or  indifferent  princes,  to  afford  a 
passage  through  their  territories  to  ambassadors  sent  by  other 
powers. 

IX.  I  mentioned,  that  we  ought  not,  without  a  just  cause, 
refuse  admittance  to  an  ambassador  ;  for  it  is  possible,  th.it  we 
may  have  very  good  reasons  to  reject  him  ;  for  exa-  pie,  if  his 
master  has  already  imposed  upon  us  under  pretext  of  an  embas- 
i  y,  and  we  have  just  reason  to  suspect  the  like  fraud  ;  if  the 
prince,  by  whom  the  ambassador  is  sent,  has  been  guilty  of 
treachery,  or  of  some  other  heinous  crime  against  us ;  or,  in  fine, 
if  we  are  sure  that,  under  the  pretext  of  negotiating,  the  am- 
bassador is  sent  only  as  a  spy,  to  pry  into  our  affairs,  and  to  sow 
the  seeds  of  sedition. 

Thus,  in  the  retreat  of  the  ten  thousand,  the  history  of  which 
has  been  written  by  Xenophon,  the  generals  resolved,  that,  so 
long  as  they  were  in  the  enemy's  country,  they  would  receive 
no  heralds  -,  and  what  moved  them  to  this  resolution  was  their 
having  found,  that  the  persons,  who  had  been  sent  among  them, 
under  the  pretence  of  embassy,  came  really  to  spy  into  their  af- 
fairs and  to  corrupt  the  soldiers. 

It  may  also  be  a  just  reason  for  refusing  admittance  to  an 
ambassador,  or  envoy  from  an  allied  power,  that,  by  admitting 
him,  we  are  likely  to  give  distrust  to  some  other  power,  with 
whom  it  is  proper  we  should  maintain  a  good  understanding. 


POLITIC  LAW.  25  c 

Lastly,  the  person  or  character  of  the  ambassador  himself  may- 
furnish  just  reasons  for  our  not  admitting  him.  This  is  suffi- 
cient concerning  the  maxim  relating  to  the  admittance,  of  am- 
bassadors. 

X.  With  regard  to  the  other  rule  of  the  law  of  nations,  which 
directs  that  the  persons  of  ambassadors  be  looked  upon  as  sacred 
and  inviolable,  it  is  a  little  more  difficult  to  decide  the  several 
questions  relating  to  it. 

1.  When  we  say  that  the  law  of  nations  forbids  any  violence 
to  ambassadors,  either  by  word  or  action,  we  do  not  by  this  give 
any  particular  privilege  to  those  ministers  ;  for  this  is  no  more 
than  what  every  man  has  a  right  to  by  the  law  of  nature  j  a  right, 
that  his  life,  his  honor,  and  his  property,  be  perfectly  secure. 

2.  But  when  we  add,  that  the  persons  of  ambassadors  are 
sacred  and  inviolable  by  the  law  of  nations,  we  attribute  some 
prerogatives  and  privileges  to  them,  which  are  not  due  to  private 
persons,  &c 

3.  When  we  say  that  the  person  of  an  ambassador  is  sacred, 
this  signifies  no  more,  than  that  we  inflict  a  severer  punishment 
on  those,  who  offer  violence  to  an  ambassador,  than  on  such,  as 
commit  an  injury  or  insult  to  private  persons  ;  and  the  charac- 
ter of  ambassadors  is  the  reason  of  our  inflicting  so  different  a 
punishment  for  <the  same  kind  of  offence. 

4.  Lastly,  the  reason,  why  we  call  the  persons  of  ambassa- 
dors sacred,  is  because  they  are  not  subject  to  the  jurisdiction 
of  the  sovereign,  to  whom  they  are  deputed,  either  in  their  per- 
sons, their  retinue,  or  effects  *,  so  that  we  cannot  proceed  against 
them,  according  to  the  ordinary  course  of  justice;  and  it  is  in 
this  that  their  privileges  chiefly  consist. 

XL  The  foundation  of  these  privileges,  which  the  law  of  na- 
tions grants  to  ambassadors,  is,  that,  as  an  ambassador  repre- 
sents the  person  of  his  master,  he  ought  of  course  to  enjoy  all 
the  privileges  and  rights,  which  his  master  himself,  as  a  sove- 
reign, would  have,  were  he  to  come  into  the  states  of  another 
prince,  in  order  to  transact  his  own  affairs,  to  negociate,  for  in- 
stance, or  conclude  a  treaty,  or  an  alliance  ;  to  regulate  some 
branch  of  commerce,  and  other  things  of  a  similar  nature,  8c  e. 
Now  when  a  sovereign  goes  into  a  foreign  country,  we  cannot 


252  THE  PRINCIPLES  OF 

imagine,  that  He  loses  his  character  and  independence,  and  that 
he  becomes  subject  to  the  prince,  whose  territories  he  visits. 
On  the  contrary,  he  ought  to  continue  as  he  was  before,  equal 
and  independent  of  the  jurisdiction  of  the  prince,  whose  terri- 
tories he  enters ;  and  the  latter  receives  him  on  the  same  foot- 
ing, as  he  would  choose  to  be  received  himself,  if  he  went  into 
the  other's  dominions.  Now  we  must  grant  the  ambassador 
the  same  prerogative  and  immunities,  in  consequence  of  his  rep- 
resentative character. 

The  very  end  and  design  of  embassies  render  these  privileges 
of  ambassadors  necessary  ;  for  it  is  certain,  that,  if  an  ambassa- 
dor can  treat  with  the  prince,  to  whom  he  is  sent,  with  a  full  in- 
dependence, he  will  be  much  better  qualified  to  perform  his 
duty,  and  serve  his  master  effectually,  than  if  he  were  subject  to 
a  foreign  jurisdiction,  or  if  he  and  his  retinue  could  be  con- 
signed over  to  justice,  and  his  goods  arrested  and  seized,  &c. 
Hence  it  is,  that  all  nations  have,  in  favor  of  ambassadors,  made 
a  very  just  exception  to  the  general  custom,  which  requires,  that 
people,  who  reside  in  a  foreign  prince's  dominions,  shall  be  sub- 
ject to  that  prince's  laws. 

XII.  These  principles  being  supposed,  I  affirm, 
i.  That  there  is  no  difficulty  with  respect  to  ambassadors, 
who  are  deputed  to  a  power,  with  whom  their  master  is  at 
peace,  and  have  injured  no  man.  The  most  evident  maxims  of 
the  law  of  nature  require  they  should  be  perfectly  secure. 
So  that,  if  we  affront  or  insult  such  a  minister,  in  any  manner 
whatsoever,  we  give  his  master  just  reason  for  declaring  war. 
Of  this  king  David  furnishes  us  with  an  example.* 

2.  With  regard  to  ambassadors,  who  come  from  an  enemy, 
and  have  done  no  harm  before  they  are  admitted,  their  safety 
depends  entirely  on  the  laws  of  humanity ;  for  an  enemy,  as 
guch,  has  a  right  to  annoy  his  enemy.  Thus,  so  long  as  there  is 
no  particular  agreement  upon  this  article,  we  are  obliged  to  spare 
the  ambassador  of  an  enemy,  only  in  virtue  of  the  laws  of  hu- 
manity, which  we  ought  always  to  respect,  and  which  oblige  us 
to  have  a  regard  for  every  thing  tending  to  the  preservation  of 
order  and  tranquillity. 
*  3  S^m.  chap,  s. 


POLITIC  LAW.  453 

3.  But  when  we  have  promised  to  admit,  or  have  actually 
admitted  the  ambassador  of  an  enemy,  we  have  thereby  mani- 
festly engaged  to  procure  him  intire  security,  so  long  as  he  be- 
haves well.  We  must  not  even  except  heralds,  who  are  sent 
to  declare  war,  provided  they  do  it  in  an  inoffensive  manner. 

4.  With  regard  to  ambassadors,  who  have  rendered  them- 
selves culpable,  either  they  have  done  the  injury  of  their  own 
head,  or  by  their  master's  order. 

If  they  have  done  it  of  their  own  head,  they  forfeit  their  right 
to  security,  and  to  the  enjoyment  of  their  privileges,  when  their 
crime  is  manifest  and  henious  ;  for  no  ambassador  whatever  can 
pretend  to  more  privileges,  than  his  master  would  have  in  the 
game  case  ;  now  such  a  crime  would  not  be  pardoned  in  the 
master. 

By  heinous  crimes  we  here  mean  such,  as  tend  to  disturb  the 
state,  or  to  destroy  the  subjects  of  the  prince,  to  whom  the  am- 
bassador is  deputed,  or  to  do  them  some  considerable  prejudice. 

When  the  crime  directly  affects  the  state,  whether  the  am- 
bassador has  actually  used  violence  or  not,  that  is  to  say,  wheth- 
er he  has  stirred  up  the  subjects  to  sedition,  or  conspired  him- 
self against  the  government,  or  favored  the  plot  \  or  whether 
he  has  taken  arms  with  the  rebels  or  the  enemy,  or  engaged 
his  attendants  so  to  do,  &c.  we  may  be  revenged  on  him,  even 
by  killing  him,  not  as  a  subject,  but  as  an  enemy  ;  for  his  master 
himself  would  have  no  reason  to  expect  better  treatment.  And 
the  end  of  embassies,  instituted  no  doubt  for  the  general  good 
of  nations,  does  not  require  that  we  should  grant  to  an  ambas- 
sador, who  first  violates  the  law  of  nations,  the  privileges,  which 
that  law  allows  to  foreign  ministers.  If  such  ah  ambassador 
makes  his  escape,  his  master  is  obliged  to  deliver  him  up,  when 
demanded. 

But  if  *he  crime,  however  henious  or  manifest,  affects  only 
a  private  person,  the  ambassador  is  not  for  that  alone  to  be  re- 
puted an  enemy  to  the  prince  or  state.  Suppose  his  master  had 
committed  a  crime  of  the  same  nature,  we  ought  to  demand 
satisfaction  of  him,  and  not  take  up  arms  against  him  till  he 
has  refused  it ;  so  the  same  reason  of  equity  directs,  that  the 
prince,  at  whose  court  the  ambassador  has  committed  such  a 
crime,  should  send  him  back  to' his  master,  desiring  him  either 


254  THE  PRINCIPLES  OF 

to  deliver  him  up,  or  to  punish  him  j  for  to  keep  him  in  prison 
till  his  master  shall  recal  him,  in  order  to  punish  him,  or  de- 
clare that  he  has  abandoned  him,  would  be  to  testify  some  dis- 
trust of  the  justice  of  his  master,  and  by  that  means  affront  him 
in  some  measure,  because  he  is  still  represented  by  the  ambas- 
sador. 

5.  But  if  the  crime  be  committed  by  the  master's  order,  it 
would  certainly  be  imprudence  to  send  the  ambassador  back ; 
since  there  is  just  reason  to  believe,  that  the  prince,  who  order- 
ed the  commission  of  the  crime,  will  hardly  surrender,  or  pun- 
ish the  criminal.  We  may  therefore,  in  this  case,  secure  the 
person  of  the  ambassador,  till  the  master  shall  repair  the  injury 
done  both  by  his  ambassador,  and  himself.  In  regard  to  those, 
who  do  not  represent  the  person  of  the  prince,  such  as  common 
messengers,  trumpets,  &c.  we  may  kill  them  on  the  spot,  if 
they  come  to  insult  a  prince  by  order  of  their  master. 

But  nothing  is  more  absurd  than  what  some  maintain,  name- 
ly, that  all  the  evil  done  by  ambassadors,  by  order  of  their  mas- 
ter, ought  to  be  imputed  entirely  to  the  latter.  Were  it  so, 
ambassadors  would  have  more  privilege  in  the  territories  of 
another  prince,  than  their  master  himself,  should  he  appear  there  j 
and  on  the  the  other  hand,  the  sovereign  of  the  country  would 
have  less  power  in  his  own  dominions,  than  a  master  of  a  fami- 
ly has  in  his  own  house. 

In  a  word,  the  security  of  ambassadors  ought  to  be  under- 
stood in  such  a  manner,  as  to  imply  nothing  contrary  to  the  se- 
curity of  the  powers  to  whom  they  are  sent,  and  who  neither 
would,  nor  could  recieve  them  upon  other  terms.  Now  it  is 
plain,  that  ambassadors  will  be  less  bold  in  undertaking  any 
thing  against  the  sovereign,  or  against  the  members  of  a  foreign 
state,  if  they  are  apprehensive,  that  in  case  of  treason,  or 
some  other  henious  crimes,  the  government  of  that  country  can 
call  them  to  an  account  for  it,  than  if  they  had  nothing  to  ap- 
prehend but  correction  from  their  master. 

6.  When  the  ambassador  himself  has  committed  a  crime,  it 
is  not  lawful  to  use  him  ill,  or  to  kill  him  by  the  law  of  retalia- 
tion or  reprisals ;  for  by  admitting  him  under  that  character") 
we   have  renounced  our  right  to  any  such  revenge. 


POLITIC  LAW.  cs5 

In  vain  «would  it  be  to  object  a  great  many  instances  of  this 
kind  of  revenge,  which  are  mentioned  in  history  ;  for  historians 
not  only  relate  just  and  lawful  actions,  but  also  divers  things 
done  contrary  to  justice  in  the  heat  of  anger,  by  the  influence 
of  some  irregular  and  tumultuous  passion. 

7.  What  has  been  hitherto  said  of  the  rights  of  ambassadors, 
ought  to  be  applied  to  their  domestics,  and  all  their  retinue.  If 
any  of  the  ambassador's  domestics  has  done  an  injury,  we  may 
desire  his  master  to  deliver  him  up.  If  he  does  not  comply, 
he  makes  himself  accessary  to  his  crime,  and  in  this  case  we 
have  a  right  to  proceed  against  him  in  the  same  manner,  as  if 
he  had  committed  the  act  himself. 

An  ambassador  however  cannot  punish  his  owxi  domestics  ; 
fcr  js  this  is  not  conducive  to  the  end  of  his  employment,  there 
is  no  reason  to  presume,  that  his  master  has  given  it  him. 

8.  With  respect  to  the  effects  of  a  foreign  minister,  we  can 
neither  seize  them  for  payment,  nor  for  security,  in  the  way  of 
justice;  for  this  would  suppose,  that  he  was  subject  to  the  ju- 
risdiction of  the  sovereign,  at  whose  court  he  resides.  But  if 
he  refuses  to  pay  his  debts,  we  ought,  after  giving  him  notice, 
to  apply  to  his  master,  and  if  the  latter  refuses  to  do  us  justice, 
we  may  seiz:;  the  effects  of  the  ambassador. 

9.  Lastly,  as  to  the  right  of  asylums  and  protections,  it  is  by  no 
means  a  consequence  of  the  nature  and  end  of  embassies.  How- 
ever, if  it  is  once  granted  to  the  ambassadors  of  a  certain  pow- 
er, nothing  but  the  welfare  of  the  state,  authorizes  us  to  re- 
voke it. 

Neither  ought  we,  without  good  reasons,  to  refuse  ambassa- 
dors the  other  sorts  of  rights  and  privileges,  which  are  estab- 
lished by  the  common  consent  of  sovereigns  ;  for  this  would 
be  a  kind  of  affront  to  them. 

END  OF  THE  FOURTH  AND  LAST  PART. 


Date  Due 

OC 1  9  '49 

f) 

t: 


